i ' ?orr-~ ifX ~ J-~ I-s ~ --~-~I

PRELIMINARY MEMORANDUM

September 29, 1986 Conference Summer List 25, Sheet 2

No. 86-104

Bd. of Airport Comnnrs., et al. (want to stop First

Amendment activity) v.

I'()\(

Cert to CA9 (Sneed, Anderson, Alarcon)

'Z ~o · Jews for Jesus, Inc., e ~ (pamphleteers)

Federal/Civil Timely

1. SUMMARY: Petrs argue CA9 erred in holding that the cen-

tral terminal area (CTA) at the Los Angeles International Airport

(LAX) is a traditional public forum.

2. FACTS AND DECISION BELOW: Petrs are the Board of Air-

port Commissioners of the City of Los Angeles (Board) and the

City of Los Angeles. Pursuant to authority granted by the city

charter, the Board manages and controls all airports owned by the -

-"-

city, including LAX. On July 13, 1983, the Board adopt1ed a reso- ~

' . c.-...1-....<-~ lution that prohibited First Amendment activ' ies in ~he CTA of

LAX. 1 On July 6, 1984, resp Snyder, a member of resp Jews for

Jesus, Inc., was distributing religious literature on a pedestri-

an walkway in the CTA when he was asked to leave by a LAX peace

officer. The officer informed re sp of the Board's resolution

and told him that if he refused to leave, the city would initiate

legal action. Resp left, and, a few days later, filed suit in de

seeking a declaration that the Board's resolution was

unconstituional. The ~c (CD Cal, Rafeedie, J.) determined that

the ~ was a traditional public forum. The de held the resolu-

tion was unconstitutional on its face and enjoined its enforce-

men~

CA9 affirmed. The court noted that both parties agreed that

the dispositive legal issue was whether the CTA is a public

forum. The court rejected petr' s argument, which was based on

Perry Education Association v. Perry Local Educators' Associa-

tion, 460 u.s. 37 (1983) and Cornelius v. NAACP Legal Defense &

1Resolution No. 13787 states, in relevant part:

I •,

"NOW, THEREFORE BE IT RESOLVED by the Board of Airport Commissioners that the Central Terminal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity;

BE IT FURTHER RESOLVED that if any individual or entity engages in First Amendment activities within the Central Terminal Area of Los Angeles International Airport, the City Attorney ••• is directed to institute appropriate litigation against such individual and/or entity

II

Educational Fund, Inc., 105 s.ct. 3439 (1985), that the CTA was I

nonpublic because petr has operated LAX ~olely fo d airport-,·~

related purposes. Resps' reliance on Perry and Cornelius is mis-

placed. Those cases concern whether governmental facilities that

are not traditional public forums have been opened for First

Amendment activities. This case, by contrast, involves the sepa-

rate issue of whether LAX is a public forum, ie. whether it is

one of "those places which by long tradition or by government

fiat have been devoted to assembly and debate." Cornelius, 10 5

S.Ct., at 3349. If it is such a place, "restrictions such as an

absolute prohibition on a particular type of expression will be

upheld only if narrowly drawn to accomplish a compelling govern-

mental interest." United States v. Grace, 461 u.s. 171, 177

(1983).

CA9 stated that 1 v .. ery other circui!J that has addressed the

issue has concluded that airports are public forums. See ~ago Area Military Project v. City of Chicago, 508 F.2d 921 (CA7),

cert. denied, 421 u.s. 992 (1975) (Chicago O'Hare); United States

Southwest Africa/Nambia Trade & Cultural Council v. United v

States, 708 F.2d 760 (CADC 1983) (National and Dulles); Fernandes

v. Limmer, 663 F.2d 619 (CA5 1981) (Dallas-Fort Worth). CA9 con-

eluded that the CTA is a traditional public forum and that the

Board's interest in limiting the uses of the terminal facilities

to airport-related purposes was not sufficiently compelling to

justify absolute prohibition of First Amendment activity. CA9

noted that the Board was free to impose reasonable time, place,

-q-

and manner restrictions on the distribution of litera~ure in the

CTA. ~ 'I

3. CONTENTIONS: Petr argues that CA9 rested its decision

on a superficial analysis of current case law and reliance on

out-dated lower court decisions. CA9 failed "to demonstrate the

existence of a traditional right of access respecting [interiors

of airport terminals] for purposes of communication comparable to

that recognized for streets and parks " City Council v. Tax-

payers for Vincent, 466 u.s. 789, 814 (1984). The interiors of

the airport terminals are not held in trust to be used by the

public for assembly and debate, but rather are intended and dedi-

cated to their airport-related purposes. But here, CA9's deci-

sion equates the CTA with traditional public forums such as

streets, parks, and sidewalks.

Petrs neither intentionally nor unintentionally opened the

interiors of its terminals for public discourse. CA9 has disre-

garded the government's right to use its property for its intend­

ed and dedicated purposes, and its decision compels every airport

operator to open its facilities as public forums restricted only

by time, place, and manner regulations. The cases from other

circuits relied upon by CA9 are inapposite. Those cases did not

address whether an airport was a public forum--the key issue

here--but rather examined time, place, and manner restrictions

for airports that had opened their facilities to expressive ac-

tivities. CA9 has concluded essentially that public ownership in

and of itself creates a public forum, and this conclusion is de-

monstrably wrong. If CA9's decision is allowed to stand, "all

government-operated facilities, regardless of their intended pur-l

poses or dedication, may become mini-parks ~edicated ~t

est range of activities imaginable." Petn 16.

the wid-

Resps contend that the cases relied upon by CA9 are clearly

apposite and petrs' argument to the contrary is erroneous. In

United States Southwwest Africa/Nambia Trade & Cultural Council,

supra, the court explicitly stated that the public places at Na-

tional and Dulles airports are "far more akin to such public fo-

rums as streets and common areas than they are to such nonforums

as prisons, buses, and mi 1 i tary bases." 7 0 8 F • 2d , at 7 6 4 • In

Fernandes, supra, the court observed that it "is now generally

well established that airport terminals owned and administered by

governmental entities are public forums •••. " 663 F.2d, at 626.

And, in Chicago Area Military Project, supra, the court held the

plaintiffs were entitled to exercise First Amendment rights in

the terminal buildings, explaining that "the spacious, city-owned

common areas ••• resembl~ .those public thoroughfares which have

been long recognized to be particularly appropriate places for

the exercise of constitutionally protected rights " 508

F. 2d , at 9 2 5.

As to petrs argument that they have not opened the CTA for

public discourse, resps contend that a governmental entity cannot

create a public facility that has been traditionally held open to

the exercise of free speech and then close that forum simply by

intending that it have some other principal purpose. In Corne-

lius, supra, the Court observed that it looks "to the policy and

practice of the government to ascertain whether it intended to

,. .. ,

; designate a place not traditionally open to assembly and debate I

as a public forum." 105 s.ct., at 3449. Here, the ' ~tipulated ''j

facts show that over the past 10 years, resps have permitted a

variety of religious and political groups to distribute litera-

ture.

Resps argue that even assuming that the CTA is not a tradi-

tional public forum, any regulation of speech must be reasonable

and not an effort to suppress particular speech. See Perry,

supra. Petrs fail to demonstrate a single problem that might

result from the exercise of First Amendment activities. The un-

disputed facts show that resp Snyder was not impeding the flow of

pedestrian traffic nor was he touching or harassing any per son.

Furthermore, petrs permit commercial speech and also have li-

censed the operation of a Christian Science reading room that is

open to the public. Petrs are therefore in the untenable posi-

tion of arguing in this case that the CTA should be limited to

ai rpor t-rela ted business while simultaneously they permit other

activities that are not so related. Finally, the resolution is

clearly overbroad as it outlaws all "First Amendment activity."

4. DISCUSSION: CA9's opinion does not contain much "rea-

soned elaboration" in support of its holding that the CTA is a

traditional public forum. The court correctly sets forth the

test articulated in Perry that such forums are "places which by

long tradition or by government fiat have been devoted to assem-

bly and debate " 460 u.s., at 45. CA9 then proceeds, howev-. . . . er, to justify its holding by relying on other circuit cases.

While this method of argument certainly isn't inappropriate, CA9

never explains why the CTA at LAX can be considered to be a place }\ '

devoted to assembly and debate. One can surmise that ~A9 was at /t I

least in p~t influenced by the stipulated facts presented to the . 5k~

de which the court did not discuss. Significan~ facts included:

the public is permitted unrestricted access to CTA; a variety of

groups have engaged in First Amendment activities in the CTA dur-

ing the past 10 years and petrs have been aware of these activi-

ties; the CTA have been used on a number of occasions by print,

television, and radio media for filming, photographing and/or

interviewing public figures; artwork created by children has been

displayed in the CTA with the consent of petrs; a display per-

taining to protected animal species has been constructed in one

terminal with the consent of petrs; petrs have not and do not

prohibit persons wearing T-shirts or other articles of clothing

imprinted with slogans, statements, or other forms of religious

or political communication from walking in the CTA. See Petn Ap

1 3-8.

While strict application of the stipulated facts to the

legal standard doesn't compel CA9's conclusion that the CTA is a

traditional public forum, the decision is arguably correct. And,

given the uniformity among the circuits that have considered the

issue, I see no reason to review this case.

5. RECOMMENDATION: I recommend denial.

There is a response.

September 16, 1986 Burcham Opin in petn.

I ~"+n-t> CJ t.-~ Y\(J c \\ 0 v J LAY-.

--------------~

c

G C-t\1 ..J: ~) t_ S

t\~--Q~ -teA (1-s -\{ .J\ v - 9~- Q/v.r-

j L) ~ ~VV\~+ -

Argued ................................ , 19 . .... . Assigned ............................. , 19 ..... . No. 86-104 Submitted ............................ , 19 ..... . Announced .......... ................ , 19 ..... .

. ~ '·'I

BOARD OF AIRPORT COMMISSIONERS OF THE CI TY OF LOS ANGELES, ET AL., Petitioners

vs.

JEWS FOR JESUS, INC. AND ALAN HCMARD SNYDER, aka AVI SNYDER

07/21/86 -

HOLD CERT. JU~~¥kCJ~~~AL MERITS MOTION FOR ABSENT NOT VOTING

G D N POST DIS AFF REV AFF G D

Rehnquist, Ch. J .................. I ( ............................................ . ......... . .......................... .

V"' Brennan, J ................................................................................................... ............ .

White, J ............................. ~ ............................................................................... . . ./ Marshall, J ..........................

7 . ... ·In~ .... . . . . . . . . . . . . . . . . .. . . . .. . .. .......................................... .

Blackmun, J ............................... ·I~ ........................................................................ . h - '=!

Powell, J. . ................ : . . . . . . . . . . ... ;;: .. ·(f~ l :':'".. . .. ~ . . . . . . . . . . . . . . . . . .. . . ........................................... . Stevens, J ..................................... (1.; .... ··;.z ................................................................ .

O'Connor, J ............................. ······9~~~ .................................................................... . Scalia, J ................................................................................................................... .

................................ ......... .... ............. .... .... .... .... .... .... ············································· 19017- 9-86

lsg 01/27/87

~1/22" ·~~~~9~,

~.!i-t~~~· at ;d""~ ~ C/1-f~k~.

,

~~~~~ 9JS(J~~ ~~~~~dJ~~ ~ 4!Jli!F c~ ~r: ~ ~ ..ev ~ ~ j+e_rz_~ ~~~~I~ ~=-~~(tt--t ~~~.12 . w~ ~ ~ f-y ~ e.:::(.

BENCH MEMORANDUM

To: Justice Powell January 27, 1987

From: Leslie

No. 86-104

Board of Airport Commns. of LAX v. Jews for Jesus

Cert. to CA9 (Sneed, Anderson, Alarcon)

Tuesday, March 3, 1987 (first argument)

I. Summary

The question presented in this case is whether an

airport operator constitutionally may prohibit First Amend-

ment expressive activities within the interior of the air-

port.

II. Background

Petrs are the City of Los Angeles and the Board of

Airport Commissioners of the City of Los Angeles. The Board

pursuant to the city charter manages and controls 1all air-.~

ports owned by L.A., including Los Angeles InterJpational

Airport (LAX). Resps are a nonprofit religious corporation

religious faith, Alan Howard Snyder.

is ~~adopted by the Board

on July 13, 1983, that pro ide.s-'!..t~ the Central Terminal

and a minister of the

The focus of this suit

Area as Los Angeles International Airport is not open for

First Amendment activities by an individual and/or entity"

and that "if any individual or entity engages in First

Amendment activities within the Central Terminal Area as Los

Angeles International Airport, the City Attorney of the City

of Los Angeles is directed to institute appropriate litiga­

tion against such individual and/or entity to ensure cornpli-

ance with this Policy Statement of the Board of Airport Corn-

missioners." __..-----,

On July 6, 1984,~~was distributing free reli­

gious literature on a pedestrian walkway in the Central Ter-

rninal Area (CTA) at LAX when he was approached by a uni-

formed Department of Airports peace officer. The officer

showed Snyder a copy of the Resolution, explained that Sny-

der was violating the Resolution, and asked Snyder to leave.

The officer warned Snyder that if he refused to leave the

City would take legal action against him. Snyder stopped

distributing the material and immediately left the terminal.

On July 17, 1984, Jews for Jesus filed suit in DC ~

seeking a declaration of their rights to distribute reli-~ ··-gious literature in public areas in the CTA. Resps raised

···•

. :;.-~ ...

.a;---;J- --

three challenges under both the federal ~nd state Constitu-·;

tions: (1) that the resolution was unconstitutiona~ on its

face because it totally bans First Amendment activities in a

public forum; ( 2) that the Resolution is unconstitutional

as applied to resps because it has only been used to ban

certain types of communicative conduct; and (3) that it is

unconstitutionally vague and overbroad because the term

"First Amendment activities" does not give guidance to offi-

cials or the public as to what activity is prohibited.

~ Before the DC, the parties orally stipulated to the 5~~~

facts, and the DC treated the trial briefs as cross-motions

for summary judgment. The DC held that the CTA is a tradi-

tional public forum, declared the total ban on First Amend-

ment activities unconstitutional on its face, and declined v

to reach the other issues raised by resps. The CA9 af-

firmed, as follows.

The Supreme

Amendment analysis.

Court has indicated the proper First/.)~!~ ~52..--t.­

First, the question is whether the

challenged activity or speech is protected by the First

Amendment. If it is, the next question is what type of

forum is at issue. The final question is whether the justi-

fications for exclusion satisfy the standards for the par-

ticular type of forum. Cornelius v. NAACP Legal Defense & - - ---~

Educational Fund, Inc., 105 S. Ct. 3439, 3446 (1985).

There is no question that the distribution of liter-

ature is protected by the First Amendment. The first ques- ;~I ty tion in this case is whether the CTA is a public forum.

This circuit and every other circuit to have addressed the ' '

1 issue have found that airport terminals are public ') forums.

Rosen v. City of Portland, 641 F. 2d 1243 (CA9 1981) (Port-

land International Airport); Kuszynski v. City of Oakland,

479 F. 2d 1130 (CA9 1973) (Oakland Airport); Chicago Area

Military Project v. City of Chicago, 508 F. 2d 921 (CA7),

cert. denied, 421 u.s. 992 (1975) (Chicago O'Hare); United

States Southwest Africa/Namibia Trade & Cultural Council v.

United States, 708 F. 2d 760 (CADC 1983) (National and

Dulles); Fernandes v. Limmer, 663 F. 2d 619 (CAS 1981)

(Dallas-Fort Worth). According to the reasoning of these

cases, the CTA is a traditional public forum. The Board's

interest in limiting the use of the terminal facilities to

airport-related purposes is not sufficiently compelling to

justify absolute prohibition of First Amendment activity.

The Board is free to impose reasonable time, place and man-

ner limitations on the distribution of literature in the

CTA.

III. Analysis ~

Jurisdictional Questions

The

Krishna ess of California, Inc., raises jurisdic-

tional questions not mentioned by either of the parties to -------this suit. The Krishnas successfully convinced another DC

(Rafeedie, J.) to dismiss an identical suit for lack of sub-

ject matter jurisdiction. The DC reasoned that there was

presently no case or controversy before the court. Immedi-

-·

'.

ately after the resolution was passed, LAX offici1als dis-, . ~

tributed copies of the Resolution to Krishna member ~. While

this may have created a case or controversy, the Krishnas

stated that their members had not subsequently been harassed

by airport officials. Additionally, the~~

provides that the Board "shall have power • • • to ~e and

enforce all necessary rules and regulations governing the

use and control of all municipal airports with the City of

Los Angeles." The provision then states that "said regula­

tions shall be approved by the~uncil by ordinance which ____________ __,~~.-,._.,,--..... _____ ______

shall prescribe the penalties for violation of such rules

and regulations." Another section states that the general

manager of the airport department "shall have the power and

duty to enforce all orders, rules and regulations adopted by

the Board." The charter does not provide for the Board to ~ ~ pass resolutions as it did in this case.

Council ratified the Board's resolution.

Nor has the City ~~

The DC thus found~ .SA- ,J.,;

- ~ that enforcement of the resolution was speculative, and ,.~~

therefore there did not exist sufficient adversity between c/-the parties to create a case or controversy. It found that ~ ~

~ the case was improvidently removed to federal court on the ~-!--federal issue, and remanded the case to state court. -?--~~

The Krishnas argue that this same reasoning applies

to this case. They claim that the resolution has never been ~

formally enforced against anyone since its passage in 1983,~~ and that in its present form it cannot be. The Krishnas

argue that the Court should DIG the case for lack 1of ripe-

ness.

The Krishnas also argue that a decision on the fed-

eral public forum doctrine will violate the long established

rule of avoiding federal constitutional adjudication where

nonfederal grounds for decision are available. The parties

raised both state and federal constitutional issues below,

----------------------~-----~ and the lower courts improperly reached the federal issues

before deciding the state ones. California courts have

found the state Constitution Article I, section 2 to be a

"protective provision more definitive and inclusive than the

[federal] First Amendment." Wilson v. Superior Court, 13

Cal. 3d 652, 658 (1975). Under €!- ifornia 1!0 areas such C~ '--'---~---- ~~ .

as convention centers, shopping centers, prison grounds, ~

interior premises of state owned visitor's centers and major ~~f~

transportation terminals (main entrance, lobby and patio l<k areas of the Union Station railway terminal in L.A.) must be

made available for the reasonable exercise of First Amend-

--~ ment rights. See citations in Krishna Brief 15. The Krish-

nas argue that the decision below should be vacated and re-

manded for a decision first on the state constitutional

issue. Resps indicate in a footnote that a state constitu-

tional violation was alleged in the complaint and extensive-

ly argued in the lower courts, but the courts "inexplicably

ignored the state constitution." Resp. Brief 21, n. 32.

Both of these jurisdictional arguments are trou-~

bling. You might want to sk questions directed

toward either of these concerns. Perhaps . the factual situa­

tion is different ~the Krishna case. Of partic~lar im-

portance is whether the DC in the Krishna case was correct

that the Resolution as it now stands is unenforceable.

There is always the argument that the mere existence of the

Resolution has in intolerable chilling effect on First ~~~ Amendment activity. The DC in the 'K;l-~h;~ case did not find J;::;:;;­this argument compelling. Also, since only the Krishnas an~~ resps have briefed the relevance of state law, there may be ~

some arguments against its applicability that are not imme- -~ ~ lr'v

diately obvious. In sum, if there is sentiment at Confer-l ~

ence to DIG or vacate and remand the case, it appears a 0 ~

this point that either would be justified.

B. The Merits

1. Traditional Public Forum

The first question in this case is whether the CTA

is a public forum. (Note that only the Central Terminal ~ ~~

Area is at issue, not the terminal areas leading to individ-~~

ual gates or directly to the planes.) Traditional public

forums are "those places which 'by long tradition or by gov-

ernment fiat have been devoted to assembly and debate.'"

Cornelius, supra, at 3449 (quoting Perry Education Associa­

tion v. Perry Local Educators' Association, 460 u.s. 37

(1983)). "Public streets and parks fall into this catego­

ry." Ibid. Traditional public forums are dedicated to the

free exchange of ideas. The only restrictions that the gov-

ernment may impose on speech in such areas are those that

··"·'·· '

are "content-neutral, are narrowly tailored to serve a sig­i

nificant government interest, and leave open ample a~ternate

channels of communication." Perry, supra, at 45.

The~ound that the CTA is a traditional public

forum, relyJ.ng largely on the analysis of other circuit

court cases. This circuit court cases addressed several of

the argument raised by petrs in this case. In Chicago Area

Military Project, supra, the~ [ T] he plaintiffs here do not claim any right to distribute leaflets on airplanes or in other pri­vately owned or leased places but only in the spa­cious, city-owned common areas which resemble those public thoroughfares which have been long recognized to be particularly appropriate places for the exercise of constitutionally protected rights to communicate ideas and information ••••

The City's claim that t e--ptlb~eceives a limited invitation to use Hare Airport or trav­el purposes only is not s ted e evidence nor do we think it is realistic. For the fact is that great numbers of people are freely admitted to the public areas of the terminal buildings not only in connection with air travel, but also for shopping, dining, sightseeing, or merely to satis­fy their curiosity. There is no question but that the terminal buildings at O'Hare Airport, city­owned and operated, are freely available to the general public and that their wide-open public areas which perhaps 90,000 transients visit daily can accommodate seven persons peacefully distrib­uting, in groups of twos and threes, free copies of their publication to interested persons.

508 F. 2d,

As

In finding the airport to be a public forum, we do n hold that within the terminals is public. s the district court noted, , those parts of the terminals restricted to airline personnel are private, ab-sent unusual circumstances. Likewise, the arrival and departure gates, where only ticketed passen-

gers may go, are not public forums. The parallel between public streets and the ciescent-sha~ed central concourses of the ••• terminal buildings, where air travelers as well as the general public may shop, dine, imbibe, and sightsee, is clear and powerful, however. The analogy between these ter­minal concourses and public streets is further strengthened by the lack of restrictions on public access to the commercial establishments located along the crescent-shaped passageways, whether or not persons must pass through security check points first.

663 F. 2d, at 627.

Th~~eached the same result:

The Council seeks to place its advertisements in those open areas of National and Dulles Air­ports that contain many of the facilities and services of a fair-sized municipality. Roughly eighteen million people pass through the con­courses and walkways of these two airports each year, enjoying the benefits of restaurants and snack bars, two post offices, various speciality shops, two medical stations, at least five bars, a barber shop, drug stores, banks, newsstands, and police stations •••• Although not every form of speech is necessarily consistent with t~ai r­port's primary use, it seems clear that the public places in these airports are far more akin to such public forums as streets and common areas than they are to such nonforums as prisons, buses, and military bases.

708 F. 2d, at 764.

4 - - J- - -

Petrs argue that the airport has not been opened to

communicative activities, but instead has been consistently

devoted to air travel-related activities. Petrs argue that

this case is like Greer v. Spock, 424 u.s. 828 ( 1976)'

where the Court found that the exterior sidewalk areas of a

military base were not to be treated the same as a munici-

pal i ty' s open streets and parks. The circuit courts ad-

dressed these arguments above in a way that seems convinc-

ing. Petrs do not, and cannot, contend that LAX is ,not gen-i

erally open to the public. Instead, they argue thcit it is

not dedicated to expression. But, it seems that concourses

like those in LAX are dedicated to expression the same way

as are streets and sidewalks. Both streets and sidewalks

have purposes other than as forums for communication -- both

are used for transportation. Their public forum character

comes from the fact that they are generally open to the pub-

lie and speech activities are not generally incompatible

with their functional uses. This would seem to be equally

true for an airport, which is simply a gathering center for

individuals using a more modern form of transportation.

The DC' s factual findings support the conclusion

that the CTA of LAX is generally open to the public and has

the characteristics of a traditional public forum:

The [petrs] have not restricted access by mem­bers of the general public to the interior of ter­minal areas at LAX to only those persons who are engaged in the use of LAX facilities for inter­state travel of for purposes of meeting or greet­ing airline passengers. The [petrs] do not at­tempt to restrict members of the general public from walking through the unrestricted interior of terminal areas at LAX. [Petrs] do not attempt to restrict members of the general public who have no purpose or desire to utilize the transportation­related facilities within the terminal areas at LAX from walking, reading, shopping, eating, drinking, and conversing with other members of the general public in the interior of terminal areas at LAX.

Pet. App. 8. The DC also found that LAX officials had de- ~~ ~

ni~ from certain groups to conduct certain activi-~

ties in the airport, e.g., the Red Cross, the Girl Scouts,~ --

" '

the Salvation Army. Although the findin,gs of fact do not il

make clear exactly what activities these groups SQught to

conduct, they were almost certainly on a larger scale than a

few individuals distributing free literature. If these

groups sought to conduct activities that would interfere

with the interstate travel function of the airport, reason-

able time, place and manner restrictions could forbid them

from doing so no matter what type of forum the airport was

found to be. Consequently, the CA9' s conclusion that the

CTA has generally been open to reasonable, nondisruptive

speech activities appears correct.

2. Nontraditional Public Forum

Opened For Expressive Activity

Even if a particular area is not a public forum, it

can become one if the government "open[s] a nontraditional

public forum for public discourse." Cornelius, supra, at

5120. Resps argue that the Board has opened LAX for cornrnu-~ ~

The CTA has newsstands, photo dis-nicative activities. ~

plays, and a C ristian Science Reading Room It is diffi------·--;;-;;---.---.----:-::

cult to argue that these are all str ~ctly related to the

airport function of facilitating air travel. Where the gov-

ernrnent has opened a particular forum, it cannot discrimi-

nate against speakers on the basis of the content of their

speech. The Resolution bans "all First Amendment activi-

ties." It would seem that the Board would either have to

ban all of the above First Amendment activities, as well as

the Jews for Jesus, or allow all to speak.

'·

page 12.

It is important to emphasize that' the CA9 a~d other 'l

circuit courts have recognized that all First Amendment ac-

tivities in airport terminals are subject to reasonable

time, place and manner restrictions. Thus, groups wishing

to distribute religious literature may be subject to re-

strictions that limit their intrusiveness and ensure that

their activities do not disturb the primary function of the

airport.

3. Compelling Interest

If the CTA is a traditional public forum, or a forum

opened for expressive activity, the Board can nevertheless

prohibit First Amendment activities if its Resolution is

narrowly drawn and is necessary to serve a compelling inter-

est. It is difficult 't;'- ~ay that a resolution banning "all ~ ~ First Amendment activity" is narrowly drawn. Moreover, the ~~

CA9 appears to have properly found that the Board has no

compelling interest to support its regulation. The one ar-

ticulated interest is: "The Los Angeles City Charter re-

quires the Board to operate all of its properties for promo-

tion and accommodation of air navigation and air commerce

and uses incidental thereto." This interest does not appear

compelling in light of the DC' s factual findings that the

Board does not limit the CTA to air travel-related activi­---------. ties in other respects. The ~~that "[i]n ?u>l-

distributing the religious literature, Snyder was not block-~ ing any entrance, exit stairway, escalator, elevator, door ------------..

or otherwise inhibiting the free flow of pedestrian traffic"

page 13.

and that "Snyder was not touching, annoying, block~ng, ob­I

structing, or otherwise harassing any other person present

in the immediate vicinity of his location on the pedestrian

walkway." Thus, it appears that the Resolution was not nar-

rowly drawn to accomplish its purpose of preventing inter-

ference with air travel.

4. Other Arguments

Resps also argue that the term "First Amendment ac­

tivities" in the Resolution allows airport official imper­

missible discretion to choose which groups will be subject

to the regulation, that the exercise of the discretion

amounts to a prior restraint, and the implementation of the

policy embodies impermissible content discrimination and

religious discrimination. The CA9 decided only the tradi------~

tional public forum question. Thus, it would be inappropri----- ~

ate for this Court to decide the additional issues raised.

Even if the Court decides that the CTA is not a public

forum, the appropriate remedy would be to remand the case to

the CA9 to decide the other questions raised.

IV. Conclusion

There are two preliminary problems in this case.

First, it appears that the Resolution at issue me.y not be

enforceable. If it is not, there is a question whether this -action presents a case or controversy. Second, the lower

federal courts failed to address the state constitutional

issues although they were briefed and argued, and although

it appears that the state constitution could have provided

page 14.

an independent ground for this decision. 'Given the uniform­'1 I

ity of the circuits on the federal constitutional issue, and

the availability of state constitutional grounds, the Court

should consider seriously whether the case should be vacated ---- ---- 8- - ------------... and remanded for consideration of the state constitutional

----- -issue.

-· If the Court reaches the merits, it appears that the

CA9 was correct. The wide open spaces of an airport termi- ~

nal bear the indicia of a traditional public forum. Al-.....___ ________ ___.,

though petrs argue that the forum cannot be traditional,

because airports are modern, the question is whether the

area is analogous to a traditional public forum. Tradition­

al public forums are streets, sidewalks and parks. The CTA

in this case contains broad walking areas, with shops and

restaurants along it, and benches for people to sit in and

converse. Because of modern technology, airports are in

fact one of the largest gathering places of all. A holding ...--. _________ ------------

in this case that the CTA is a traditional public forum will

not apply to all government-owned property. The focus al-

ways remains on the characteristics of the place. Here, the

characteristics are remarkably similar to classic public

forums traditionally open for First Amendment activities.

Even if the CTA is not a traditional public forum,

it may be a forum opened by the Board for First Amendment r activities. The Board allows numerous other speech-related

activities to occur in the CTA. Thus, it appears that it

has opened the area to First Amendment activities compatible

........

page 15.

with the function of the airport -- facilitating air ~ travel.

''\ There is no indication that resps proposed activities are

incompatible.

No matter what type of forum the CTA is, the Board

can impose reasonable time, place and manner restrictions on

speakers. These limitations are a narrowly tailored way to

ensure that speech activities do not intrude on the function

of the airport.

For all of the above reasons, I recommend that if

the Court reaches the merits, the CA9 's decision be af-~-----------

firmed.

Argued ................................ , 19 ..... .

Submitted ............................ , 19 .. ... .

Assigned ............................. , 19 ..... .

Announced .......................... , 19 ..... . I

i; ''l

No. 86-104

BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LOS ANGELES, ET AL., Petitioners

vs.

JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER, aka AVI SNYDER

07/21/86 -

HOLD CERT. JU:4~¥kCJ~w;.AL MERITS MOTION FOR ABSENT NOT VOTING

G D N POST DIS AFF REV AFF G D

Rehnquist, Ch. J .................. (. ................................................................................. . 1-v Brennan, J .............................................................................................................. .

White, J ............................. ~ ................................................................................ . Marshall, J .............................. (.'.1r1 • • • • • • • • • • • • • • • • • • • • • • ••••••••••••••••••••••••••••••••••••••••••••••••••••

Blackmun, J ........................ ( . .... ~e. ........................................................................ . Powell, J .................. : . . . . . . . . . . ........ . ( . :: .~~. ~ . . . . . . . . . . . . . ................................................... . s:evens, J ............................... ~ .... Ch~ ··~ ................................................................ . 0 Connor, J. . . . . . . . . . . . . . . . . . . . . . . . . . ........ ·d- ......................................................................... . Scalia, J ................................................................................................................... .

································ .............................................................................................. . 19017-9--86

lsg 01/27/87

~1/z£ ·~~~~9~,

~~~~~· at J,z_l-~ ~ C/1-i ~k.~.

,/

~~~~~ ~

~ s fJ ~n.a-.r

J-4 ~~~~.j_~~ ~ ~c~~r. ~~4.;~ ~ p-e-~ ~~ ~ ~ I -L/-­b£7~~(~~ ~~~12. w~ ~ ~ f-y 4--f L::(.

BENCH MEMORANDUM

To: Justice Powell January 27, 1987

From: Leslie

No. 86-104

Board of Airport Commns. of LAX v. Jews for Jesus

Cert. to CA9 (Sneed, Anderson, Alarcon)

Tuesday, March 3, 1987 (first argument)

I. Summary

The question presented in this case is whether an

airport operator constitutionally may prohibit First Amend-

ment expressive activities within the interior of the air-

port.

II. Background

Petrs are the City of Los Angeles and the Board of

Airport Commissioners of the City of Los Angeles. The Board

pursuant to the city charter manages and controls 'all air-.~

ports owned by L.A., including Los Angeles Inter·pational

Airport (LAX). Resps are a nonprofit religious corporation

religious faith, Alan Howard Snyder.

is ~adopted by the Board

on July 13, 1983, that pro · de.s- '!-t.7t the Central Terminal

and a minister of the

The focus of this suit

Area as Los Angeles International Airport is not open for

First Amendment activities by an individual and/or entity"

and that "if any individual or entity engages in First

Amendment activities within the Central Terminal Area as Los

Angeles International Airport, the City Attorney of the City

of Los Angeles is directed to institute appropriate litiga­

tion against such individual and/or entity to ensure cornpli-

ance with this Policy Statement of the Board of Airport Corn-

rni s sione r s. " .----·--....

On July 6, 1984,~~was distributing free reli­

gious literature on a pedestrian walkway in the Central Ter-

rninal Area (CTA) at LAX when he was approached by a uni-

formed Department of Airports peace officer. The officer

showed Snyder a copy of the Resolution, explained that Sny-

der was violating the Resolution, and asked Snyder to leave.

The officer warned Snyder that if he refused to leave the

City would take legal action against him. Snyder stopped

distributing the material and immediately left the terminal.

On July 17, 1984, Jews for Jesus filed suit in DC ~

seeking a declaration of their rights to distribute reli-~

gious literature in public areas in the CTA • Resps raised

. • :,~". ~·~·-r.. ;

three challenges under both the federal and state eonstitu-I;

tions: (1) that the resolution was unconstitutionaf on its

face because it totally bans First Amendment activities in a

public forum; ( 2) that the Resolution is unconstitutional

as applied to resps because it has only been used to ban

certain types of communicative conduct; and (3) that it is

unconstitutionally vague and overbroad because the term

"First Amendment activities" does not give guidance to offi-

cials or the public as to what activity is prohibited.

~ Before the DC, the parties orally stipulated to the 5~~~

facts, and the DC treated the trial briefs as cross-motions

for summary judgment. The DC held that the CTA is a tradi­

tional public forum, declared the total ban on First Amend-

ment activities unconstitutional on its face, and declined v

to reach the other issues raised by resps. The CA9 af-

firmed, as follows.

The Supreme

Amendment analysis.

Court has indicated the proper First~~!~ ~5t..--L.

First, the question is whether the

challenged activity or speech is protected by the First

Amendment. If it is, the next question is what type of

forum is at issue. The final question is whether the justi-

fications for exclusion satisfy the standards for the par-

ticular type of forum. Cornelius v. NAACP Legal Defense & -·- --~

Educational Fund, Inc., 105 s. Ct. 3439, 3446 (1985).

There is no question that the distribution of liter-

ature is protected by the First Amendment. The first ques- ;~I cy tion in this case is whether the CTA is a public forum.

This circuit and every other circuit to have addressed the I ~·

issue have found that airport terminals are public j forums.

Rosen v. City of Portland, 641 F. 2d 1243 (CA9 1981) (Port-

land International Airport); Kuszynski v. City of Oakland,

479 F. 2d 1130 (CA9 1973) (Oakland Airport); Chicago Area

Military Project v. City of Chicago, 508 F. 2d 921 (CA7),

cert. denied, 421 u.s. 992 (1975) (Chicago O'Hare); United

States Southwest Africa/Namibia Trade & Cultural Council v.

United States, 708 F. 2d 760 (CADC 1983) (National and

Dulles); Fernandes v. Limmer, 663 F. 2d 619 (CAS 1981)

(Dallas-Fort Worth). According to the reasoning of these

cases, the CTA is a traditional public forum. The Board's

interest in limiting the use of the terminal facilities to

airport-related purposes is not sufficiently compelling to

justify absolute prohibition of First Amendment activity.

The Board is free to impose reasonable time, place and man-

ner limitations on the distribution of literature in the

CTA.

A.

III. Analysis ~

Jurisdictional Questions

The International Society for

Krishna ness of California, Inc., raises jurisdic-

tional questions not mentioned by either of the parties to ---.._...--

this suit. The Krishnas successfully convinced another DC

(Rafeedie, J.) to dismiss an identical suit for lack of sub-

ject matter jurisdiction. The DC reasoned that there was

presently no case or controversy before the court. Immedi-

ately after the resolution was passed, ~AX offici1als dis-.~

tributed copies of the Resolution to Krishna member~. While

this may have created a case or controversy, the Krishnas

stated that their members had not subsequently been harassed

by airport officials. Additionally, the~_!:~ provides that the Board "shall have power ••• to ~e and

enforce all necessary rules and regulations governing the

use and control of all municipal airports with the City of

Los Angeles." The provision then states that "said regula­

tions shall be approved by the~uncil by ordinance which ___________ __,'-l.----a..-. ..--.. ____ ___

shall prescribe the penalties for violation of such rules

and regulations." Another section states that the general

manager of the airport department "shall have the power and

duty to enforce all orders, rules and regulations adopted by

pass resolutions as it did in this case.

Council ratified the Board's resolution.

--therefore there did not exist sufficient adversity between

the parties to create a case or controversy.

-federal issue, and remanded the case to state court.

The Krishnas argue that this same reasoning applies

to this case. They claim that the resolution has never been ~

formally enforced against anyone since its passage in 1983,~~ and that in its present form it cannot be. The Krishnas

argue that the Court should DIG the case for lack 1of ripe-

ness.

The Krishnas also argue that a decision on the fed-

eral public forum doctrine will violate the long established

rule of avoiding federal constitutional adjudication where

nonfederal grounds for decision are available. The parties

raised both state and federal constitutional issues below,

and the lower courts improperly reached the federal issues

before deciding the state ones. California courts have

found the state Constitution Article I, section 2 to be a

"protective provision more definitive and inclusive than the

[federal] First Amendment." Wilson v. Superior Court, 13 ('>A. I

Cal. 3d 652, 658 (1975). Under ~~iii) areas such ~r ~:.:.__ ~f .

as convention centers, shopping centers, prison grounds, ~

interior premises of state owned visitor's centers and major ~~~

transportation terminals (main entrance, lobby and patio l<k areas of the Union Station railway terminal in L.A.) must be

made available for the reasonable exercise of First Amend-

-------------------------------------~ ment rights. See citations in Krishna Brief 15. The Krish-

nas argue that the decision below should be vacated and re-

manded for a decision first on the state constitutional

issue. Resps indicate in a footnote that a state constitu-

tional violation was alleged in the complaint and extensive-

ly argued in the lower courts, but the courts "inexplicably

ignored the state constitution." Resp. Brief 21, n. 32.

Both of these jurisdictional arguments are trou- /~

bling. You might want to sk questions directed ~-----------

toward either of these concerns. Perhaps the factual situa­

tion is different ~the Krishna case. Of partic~lar im­

portance is whether the DC in the Krishna case was correct

that the Resolution as it now stands is unenforceable.

There is always the argument that the mere existence of the

Resolution has in intolerable chilling effect on First ~~f Amendment activity. The DC in the 'Krishna case did not find ~ this argument compelling. Also, since only the Krishnas an~~ resps have briefed the relevance of state law, there may be ~

some arguments against its applicability that are not imme- -~~ lr'v

diately obvious. In sum, if there is sentiment at Confer-l ~

ence to DIG or vacate and remand the case, it appears a :J ~ this point that either would be justified.

B. The Merits

1. Traditional Public Forum

The first question in this case is whether the CTA

is a public forum.

Area is at issue, not

{Note that only the Central Terminal ~ ~h4..12

the terminal areas leading to individ-~~

ual gates or directly to the planes.) Traditional public

forums are "those places which 'by long tradition or by gov-

ernment fiat have been devoted to assembly and debate.'"

Cornelius, supra, at 3449 {quoting Perry Education Associa­

tion v. Perry Local Educators' Association, 460 U.S. 37

{1983)). "Public streets and parks fall into this catego-

ry." Ibid. Traditional public forums are dedicated to the

free exchange of ideas. The only restrictions that the gov-

ernment may impose on speech in such areas are those that

February 4, 1987

86104 GINA-POW

86-104 Board of Airport Commissioners (L.A.) v. Jews for

Jesus (CA9)

Memo to File:

Although the two questions on which we granted cert.

are stated in some detail, the courts below and both

parties here agree that the central question is whether

the Los Angeles Airport is a "public forum."

On July 13, 1983, the Board of Airport Commissioners

of the City adopted a resolution that states in part:

"Now, therefore be it resolved by the Board of Airport Commissioners that the central term~nal area at Los Angeles International Airport i§_Qpt o en fo First Amendment activ'ties by any ind1v1dual and or entity; ••• "

In July 1984, Snyder--a minister of Jews for Jesus--

was distributing free religious literature on a pedestrian -walkway in the central terminal area when a uniformed --....... officer read Snyder the resolution, and threatened to have

2.

legal action taken against him unless he stopped

distributing the leaflets. Shortly thereafter, respondent

and Snyder (hereafter "the respondents") filed this

Section 1983 suit seeking a declaration of their rights to

distribute religious literature in the public areas of the

airport. Respondents, in their complaint, challenged the

validity of the resolution under both the federal and

state constitutions on three grounds: (i) on its face,

because it totally bans First Amendment activities in a

public forum; (ii) that it is unconstitutional as applied

to respondents because it has only been used to ban

certain kinds of communicative conduct such as that of

distributing leaflets by respondents; and (iii) that the

resolution is "vague and overbroad." Bath the DC and

CA9 held the resolution invalid o~ts face, and therefor

did not reach the "as applied" and "vague and overbroad"

issues.

There is a rather elaborate stipulation of facts in

Appendix 1 to the petition for cert. These indicate the

sort of activities we're all familiar with in airport v-- ~

terminals, including advertisements, restaurants, ._..--newsstands,~all shops,~s, and the like. The City (I

use it rather than the Board of Airport Commissioners)

3.

asserts that it has never intentionally or knowingly

permitted the airport to be used except for "airport

related activities", although this is a term not defined

in the resolution at issue or--as far as I know--anywhere

else.

The courts below, both the DC and CA9, had no

difficulty in concluding rather summarily that this type

of airport is a "public forum." In addition to

emphasizing that literally millions of people use the L.A.

Airport annually, including a significant number of people

who are not necessarily there for airport purposes. The

City argues quite reasonably that if Jews for Jesus are

permitted to hand out pamphlets, hundreds of political,

religious, charitable and other types of entities may wish

to do likewise. Moreover, in a rather silly brief filed

on behalf of a AFL-CIA, it is argued that under the

Airport Resolution that bans "First Amendment activities

by any individual and or entity", even a single individual

could not hand out pamphlets, engage in political

conversation, try to persuade a friend or acquaintance to

a particular point of view, or do much more of anything

other than board or leave airplanes, wait for airplanes,

4.

or accompany people who are flying in or out of airports

to meet them or bid goodbye.

The courts below naturally and properly relied on

decisions that have held other major airports in the

United States to be "public foria", including O'Hare,

Dulles, National, Dallas, and perhaps others. I believe

these decisions have emphasized, as indeed the courts

below did, that "time, place, and matter" regulations

would be entirely appropriate if reasonably related to

preventing the sort of problems that the City emphasizes

in its briefs. It is conceded that the Board of Airport

Commissioners of Los Angeles preferred the absolute ban to

"time, place and matter regulations", and this is the

position taken in this case.

* * * In light of the posture in which this case is

presented to us, namely, as a facial challenge to a

resolution that provides an absolute ban on any "First

Amendment activity", it is not easy to see how we can do

otherwise than to affirm CA9. Indeed, a good deal can be

said for dismissing the case as improvidently granted. I

regret that although I had marked my cert memo to deny, I

5.

was persuaded at conference to "join three"--without

having read the briefs.

If my clerk agrees, a 2 or 3 page memo will suffice.

LFP, JR.

~ 86-104 BOARD OF AIRPORT COMMISSIONERS V. JEWS FOR JESUS

·, ..

. ~ ''l

Argued 3/3/87

v~r-vy~-

J<~(~f-~~). . i

~~~~.kL~ ~ e>222 &ACt:t:i.t~- • ~. ,f.t:Uv-~ ll~ 4-.z) ~ ~ ~~ ~~·.

~~d.~~

f2u_ ~ ~ ~ H-u ~ f- L-t­

~~~4 (}_~ ~~--~~ ~ Yf-t_

~~.~iv~~~?~ f-t-,L ~ ~ ~-~~-~kel~.

~""'1 k Jl-19.1$} ~ 44-~:..e c4 '5

~~ ~ ~1-J-1-~~~ -1-a ~d.L~ ~,t ~~ ~~

~~~~,tot'~~~ ~~v {_ ~ J t?-' ~l.ut~ ~~ ~ ~-by .. ~~~~··~ ~~q~~~

'·,

~(!?~) ' . a.~&.~.~~~~/.£)

JA.A-A-"-/ ~~r1...1~ ~ ,4_d._ ~~ tf~~~ .. ~~.

~~~~~4~~~~ ~ /, ~ rs w-;~ ~~ . 5o-~~~~~~

- .A!.-1 ~~ s~-t:,..,~ ~ ~- sale - -~~ ~~~~~t.p ~ ~f' ., ""~~ 4> .-6~ ~b'~ t-4--~, ~ ~~_.A.t..tL1~~- li-t-~

--' ~ ('!~~~~~-~--~

.. . . • l

...

~u.v~~" . ( ~ ~,;J~-&.-~

~"'~,~ 9-- ~~.f4._4ttev''~·)

[ ~ ~ 4 ~ J-he.r~ L..-G/ ~ ~~~~~A_~f~ ~ ~ ·~~\·~a- 'J&t'J>WL-~-

~~~\J

~ H.J-~~4s 441-< ~-1-­~~.

. .. '

(

No. 86-104 Board ·of Airport Commissioners v. (Jews for Jesus Conf. 3/6/87

The Chief Justice ~ ~ 7'~ ~· ~f 1;;..;2J< ' ~

'I 1

q '--t.. ~~ ~~~A- ~ &--~ ~.

~J-A- ·~~ . ~~ly

'~b.~~ ~ ,Lo rt-t. ~.~~~--~~ ·

1?;'-"--f-~ ~~· L..t_., ~-~-

ct- c.~ /.1.-V ~ ,

Justice Brennan t21Jf'~ . . . . ?~ ~ ._.,__ t?fA,J-., ~ ~- '~

~~~-~-f;..P1--1'f ~ J..o '/2~~ '-1- ~ ~ ~ ~

~~~T~~~~

'~ ~, .. ,L. ~ ·~~~~

~ .

c~ ~ .a ""'~J.-_ l--1..; ~ 1- CA...-~~ ~· r~,f?~L-~ ~< ~~-~~~~-~

Justice White

... , : -:JiUusStitii;ce"iMlaiar:;tsh;;iatll "2Qj'Ijj~~~-------_::::--------~

' n

~· Justice Blackmun t:2J.-f · t:2.L~-- · C A s ~ r? ee.J ~J.

~~· ~~ ~ ~~~d. ... ····~~

,. ~~~~ - ~~-- ~~,_(_

Justice Powell qf )1AA

~ ~ j-rv ~-~H._.

~;.--1-r. -~---~~A.....~ ~4~

1-o ~~h- ?.-r ~.fl*4l ~ i- /)AA~. .

c~.:r ~ ~ 1 :::r ~ ~). .• __ ,; .. ,_./.a:; .....

-~ ~ ...-t..-< ....t--~.

--------------~·-----------------.• . JUSTICE STEVENS 0-f/~

I

~~~~~~ ~~-~~~,11~

' ~1-v~~ ~ LD ~

JUSTICE 0' CONNOR c::2-f/-~ rJul-&t-h-~~~

5 Ca£-f . ~ :z::..__ ~ c~~~G~

CJH~~ ~-~4-.

JUSTICE SCALIA ~~

4

'Jf ~1-D~A-~,~~,, ~ ~~~ ~ J;-..~.-t­

~1 ~~~~~k-:P~

~~· Ctfl~~

Justice Marshall --1_ /(} J U:SLlCI:! VV ll!Lt! i Justice Blackmun ~ T - (f-Justic~ Powell Justice ,Stevens Jus tic~ ·jScalia

From: Justice O'Connor Circulated: APP. 9 1987

Recirculated: ________ _

1st DRAFT

SUPREME COURT OF mE UNITED STATES

No. 86-104

BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LOS ANGELES, ET AL., PETITIONERS v. JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER,

AKA AVI SNYDER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF c=...~ ,.,_.__ APPEALS FOR THE NINTH CIRCUIT

[April -, 1987]

JusTICE O'CONNOR delivered the opinion of the Court. The petitioner Board of Airport Commissioners seeks

review of the holding of the Court of Appeals for the Ninth Circuit that Los Angeles International Airport (LAX) is a "public forum" under the Federal Constitution. Because the Court of Appeals failed to address respondents' parallel and potentially dispositive claim under the California Constitu­tion, we vacate the judgment below and remand for consider­ation of the state law claim.

I On July 13, 1983, the Board of Airport Commissioners

(Board) adopted Resolution No. 13787, which provides in pertinent part:

"NOW, THEREFORE, BE IT RESOLVED by the Board of Airport Commissioners that the Central Termi­nal Area at Los Angeles lhternational Airport is not open for First Amendment activities by any individual and/or entity;

BE IT FURTHER RESOLVED that after the effective date of this Resolution, if any individual and/or entity seeks to engage in First Amendment activities within

~D'C ~0--

~ a,_~ Ud-~a~

~rr

~ &.-t_ .1-CJ ~·'~

~ 4- tu-E...~ ~~

86-104-0PINION

2 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

the Central Terminal Area at Los Angeles International Airport, said individual and/or entity shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners in reference to the uses permitted within the Central Terminal Area at Los An­geles International Airport; and BE IT FURTHER RESOLVED that if any individual or entity engages in First Amendment activities within the Central Terminal Area at Los Angeles International Air­port, the City Attorney of the City of Los Angeles is di­rected to institute appropriate litigation against such individual and/or entity to ensure compliance with this Policy statement of the Board of Airport Commission- ·· ers. . . . " App. 4a-5a.

Respondent Jews for Jesus, Inc. is a non-profit religious corporation. On July 6, 1984, Alan Howard Snyder, a minis­ter of the Gospel for Jews for Jesus, was stopped by a De­partment of Airports peace officer while distributing free religious literature on a pedestrian walkway in the Central Terminal Area at LAX. The officer showed Snyder a copy of the resolution, explained that Snyder's activities violated the resolution, and requested that Snyder leave LAX. The officer warned Snyder that the City would take legal action against him if he refused to leave as requested. App. 19a-20a. Snyder stopped distributing the leaflets and left the airport terminal. App. 20a.

Jews for Jesus and Snyder then filed this action in the Dis­trict Court for the Central District of California, challenging the constitutionality of the resolution under both the Califor­nia and Federal Constitutions. First, respondents con­tended that the resolution was facially unconstitutional under Art. I, § 2 of the California Constitution and the First Amendment to the United States Constitution because it bans all speech in a public forum. Second, they alleged that the resolution had been applied to Jews for Jesus in a dis-

86-104-0PINION

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 3

criminatory manner. Finally, respondents urged that the resolution is unconstitutionally vague and overbroad.

When the case came before the District Court for trial, the parties orally stipulated to the facts, and the District Court treated the trial briefs as cross-motions for summary judg­ment. The District Court held that the Central Terminal Area was a traditional public forum under federal law, and held that the resolution was facially unconstitutional under the United States Constitution. The District Court declined to reach the other issues raised by Jews for Jesus, and did not address the constitutionality of the resolution under the California Constitution. The Court of Appeals for the Ninth Circuit affirmed. 785 F. 2d 791 (1986). Relying on Rosen v. Port of Portland, 641 F. 2d 1243 (CA9 1981), and Kuszynski v. City of Oakland, 479 F. 2d 1130 (CA9 1973), the Court of Appeals concluded that "an airport complex is a traditional public forum," 785 F. 2d, at 795, and held that the resolution was unconstitutional on its face under the Fed­eral Constitution. We granted certiorari, -- U. S. -­(1986), and now vacate and remand.

II

In their complaint, Jews for Jesus alleged a violation of the ~ Ca~~!!Etion as well as the Federal Constitution. The Lio erty of s-peech Clause of the California Constitution provides:

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Cal. Const., Art. I, § 2(a).

In recent years, the California courts have interpreted the California Liberty of Speech Clause to provide greater pro­tection for expressive activity than that provilled by- the First Amen me o e mted States Constitution. Wil­son v. Superior Court, 13 Cal. 3d 652, 658, 532 P. 2d 116, 120

86-104-0PINION

4 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

(1975) (The California Liberty of Speech Clause is "more de­finitive and inclusive than the First Amendment"). Most no­tably, the California courts have adopted a view of "public forum" under the Liberty of Speech Clause that is more ex­pansive than that expressed by this Court in cases arising under the First Amendment. Under the First Amendment, this Court has stated that a public forum must be either a "traditional" public forum such as a street or park that has by long tradition been devoted to assembly or speech, or a "des­ignated" public forum such as a municipal theater created by government designation as a place of communication. Cor­nelius v. NAACP Legal Defense & Educ. Fund,-- U.S. --, -- (1985)i Perry Educ. Ass'n v. Perry Local Educ. · Ass'n, 460 U. S. 37, 45-46 (1983). The California Courts have adopted a different approach. In In re Hoffman, 67 Cal. 2d 845, 434 P. 2d 353 (1967), the California Supreme Court held that a railway terminal was a public forum be­cause expressive activity was not inconsistent with the use of the terminal:

"The primary uses of municipal property can amply be protected by ordinances that prohibit activities that in­terfere with those uses. Similarly, the primary uses of railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohib­ited solely because the property involved is not main­tained primarily as a forum for such activities.

"[I]n the present case, the test is not whether petition­ers' use of the station was a railway use but whether it interfered with that use." 67 Cal. 2d, at 850-851, 434 P. 2d, at 356.

Although In re Hoffman itself did not clearly indicate that l it rested on state law, the California courts have subse­quently cited it as an aid to interpretation of the California Constitution. Thus, in Robins v. PruneYard Shopping Cen-

l; 86-104-0PINION '1

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 5

ter, 23 Cal. 3d 899, 592 P. 2d 341 (1979), aff'd, 447 U. S. 74 (1980), the California Supreme Court held that private shop­ping malls are public fora under the California Liberty of Speech Clause, relying in part on In re Hoffman, supra, de­spite the fact that this Court had already held in Tanne~. Lloy orp., a., 4 7 U. S. 551 (1972), that t e ederal Constitution offered no such protection for expressive activi­ties. See also Prisoners Union v. California Department of Corrections, 135 Cal. App. 3d 930, 185 Cal. Rptr. 634 (1982) (prison parking lot is public forum under California Constitu­tion); University of California Nuclear Weapons Labs Con­version Project v. Lawrence Livermore Laboratory, 154 Cal. App. 3d 1157, 201 Cal. Rptr. 837 (1984) (visitor center is a · public forum under California Constitution).

Under the California Liberty of Speech Clause, therefore, the "public forum" doctrine "is not limited to traditional pub­lic f~ts, sid wa s, an ~ s or ~ites de~ative activity such as municipal the­aters. Rather, the test under alifornia law is whether the communicative activity 'is basically incompatible with the normal activity of a particular place at a particular time.'" Carreras v. City of Anaheim, 768 F. 2d 1039, 1045 (CA9 1985), quoting Prisoners Union v. California Department of Corrections, supra, at 939, 185 Cal. Rptr., at 639.

Although the Court of Appeals for the Ninth Circuit has described California's Liberty of Speech Clause as providing "greater protection for expressive activity" than the First Amendment, Carreras v. City of Anaheim, supra, at 1044, n. 7, nevertheless both the District Court and the Court of Appeal failed to address respondents' claim that the resolu­tion was facially unconstitutional under the California Con­stitution. Yet, under this Court's precedents federal courts normally must address dispositive issues of state law before considering claims under the Federal Constitution. In City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283 (1982), this Court remanded to the Court of Appeals a constitutional

~ 86-104-0PINION ··'I

6 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

challenge to a city ordinance governing coin-operated amuse­ment establishments because the ordinance might violate the Texas Constitution. We observed that "the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions," id., at 293, and noted that "there is no need for decision of the federal issue" if the state constitution provided "independent support" for the plaintiff's requested relief. Id., at 294-295. We concluded, consistent with this l Court's "policy of avoiding the unnecessary adjudication of federal constitutional issues," ibid. , that under these circum­stances the case must be remanded to determine whether the case could be resolved under the Texas Constitution. Simi:.. larly, this Court has on several occasions remanded a case on Pullman abstention grounds when the apphcat10n of a state cons 1 ut10na pro ision might prevent the need to reach a Federal Constitutional issue. See Askew v. Hargrave, 401 U. S. 476 (1971); Reetz v. Bozanich, 397 U. S. 82 (1970); City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959). Thus, as a result of these precedents, "[t]here exists a growing recognition among Federal Courts of Ap eals that it is incum ent u on em to reso ve issues of s ate con-sti utionailaw efore reac -ing Issues ansing under the Fed­era onstltution." Delaware v. an rs a l, -- U. S. --:-=-----;TI. 15 (STEVENS, J., dissenting). Indeed, the Court of Appeals for the Ninth Circuit itself has done pre­cisely that in applying the "public forum" principles of Cali­fornia constitutional law rather than the First Amendment to invalidate a city ordinance banning solicitation at the Ana­heim Stadium and Anaheim Convention Center. Carreras v. City of Anaheim, supra, at 1042-1043.

The principle that federal courts should avoid resting a de­cision on Federal Constitutional grounds if a case can be de­cided on the basis of state law follows from the more general and longstanding principle that federal courts should avoid unnecessary adjudication of federal constitutional issues.

. ~ 86-104-0PINION ''j

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 7

See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345-348 (1936) (Brandeis, J., concurring). As early as 1909, this Court recognized that federal courts should avoid federal constitutional issues if a case can be decided on pend­ent state law grounds. Siler v. Louisville & Nashville R . R., 213 U. S. 175, 193 (1909); see also Hagans v. Lavine, 415 U. S. 528, 547 (1974) ("Numerous decisions of this Court have stated the general proposition endorsed in Siler . . . . These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case"). "[l]f a con­troverted question of state law underlay the question of fed­eral law, it -[is] the district court's duty to decide the· state question first . . . in order to avoid if possible a federal constitutional question." P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 989 (2d ed. 1973). State constitutional provisions that do more than merely mirror Federal Con­stitutional guarantees offer no less compelling a ground for decision than state statutes and case law. Cf. Delaware v. Prouse, 440 U. S. 648, 652-653 (1979) (observing that some State constitutional provisions will be interpreted by State Courts to mirror Federal constitutional law). Particularly when, as is the case here, the state constitution may provide greater protection for individual rights than the United States Constitution, the resolution of the federal claim may be unnecessary to support the plaintiff's claim for relief. See Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1099-1100 (1974) ("When state law is truly clear and when ruling on it would dispose of the case, it would seem appro­priate for the federal court to rule on the state issue even if the federal constitutional question is also clear and nonsensitive").

In addition, principles of federalism compel the conclusion that federal courts should first examine legitimate state con-

. . ,

86-104-0PINION i I ''I

8 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

stitutional claims, if their resolution is clear as a matter of state law, before reaching any Federal Constitutional issues. State constitutional law, no less than Federal Constitutional law, has an important role to play in the protection of individ­ual rights. See Linde, First Things First: Rediscovering the States' bills of Rights, 9 U. Balt. L. Rev. 379 (1980); Bren­nan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). But if state constitu­tional law is to play this role, the federal courts, no less than the state courts, may be called upon to recognize and apply settled state constitutional norms.

In this case several factors strongly counsel in favor of first addressing the respondents' . pendent state claim before · reaching the Federal Constitutional issues. Respondents' claim under the California Constitution is potentially dispos­itive, and is based on a state constitutional provision that does not merely mirror the Federal Constitution. The Cali­fornia Courts have given the concept of "public forum" a set­tled meaning under the California Constitution that offers broader protection to expressive activity in public facilities than that under the First Amendment. There exists "[n]o reason for hasty decision of the [federal] constitutional ques­tion presented by this case." City of Mesquite v. Aladdin's Castle, Inc., supra, at 294. Because the District Court and the Court of Appeals simply ignored respondents' claim under the California Liberty of Speech Clause, we vacate the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion.

It is so ordered .

lsg 04/09/87

MEMORANDUM

To: Justice Powell April 9, 1987

From: Leslie

No. 86-104, Bd. of Airport Comm'rs v. Jews For Jesus

Justice O'Connor's draft Court opinion is now circulat-

ing. The Confe renee voted to dec ide this case on the federal

constitutional ground of overbreadth. The opinion, however, re-

mands the case for consideration of the state constitutional is-----...__. ---

sues. This resolution seems desirable because the lower courts

should not have ignored the state law claim. The decision will

stand as a message to the lower courts in all types of cases and

should reduce the federal questions that are unnecessarily decid-

ed. In sum, I think that decision on this ground is more mean-

ingful than would be the decisfon on overbreadth. I recommend

that you join the opinion.

CHAMBERS OF

.JUSTICE BYRON R. WHITE

'

.ltpt"tmt (lf&ttttt of tift~~ .tatu' J[ulfinghm. ~. Of. 2llgi~~

86-104 -

April 10, 1987

Board of Airport Commissioners v. Jews for Jesus

Dear Sandra,

I thought the conference vote was to rule that the First Amendment did not require that this airport be considered a public forum but that the ordinance is nevertheless overbroad and unconstitutional. I do not disagree with your discussion of how the federal court should have proceeded, and it would appear that the courts below disregarded these prudential ground rules. But they are not jurisdictional; and here both courts dealt with the First Amendment issue, and we granted certiorari to decide that question, which was briefed, argued and submitted. Nor was it argued at the certiorari stage that the court below should have decided the case on state law grounds. In the interests of running our own business efficiently and avoiding any misapprehension about the federal law, I would much rather express our disagreement on the public forum issue as a matter of First Amendment law and reverse outright, leaving the state law question for decision on remand. Or I could go on and, as the conference voted, say that the ordinance is fatally overbroad under the First Amendment. In the course of doing this, we could express our view as to how the courts should have proceeded but did not.

Sincerely yours,

Justice O'Connor

Copies to the Conference

.Bu.prtnu (lf.ourf d IJtt ~ittb .lltait.e' 'JIMJringtDn, J. Of. 2llc?,.~

. 'I ,, ''l

CHAMBERS OF

JUSTICE SANDRA DAY O'CONNOR

' .. '

April 10, 1987

Re: 86-104 Board of Airport Commissioners v. Jews for Jesus

Dear Byron,

I realize the conference expressed a willingness to address the public forum issue and overbreadth, but, in reviewing the proceedings below, it seemed to me the Court of Appeals should have decided the state law question rather than to decide the case on the basis of federal 1st Amendment doctrine. For us to reinforce that error by repeating it here seemed to me to send the wrong signal. Perhaps it would be helpful in the long run to vacate

land direct the Court of Appeals to consider the state law question in these circumstances. If, after reviewing the circulating draft, the Conference remains of the view that federal public forum doctrine should be the basis for our decision, I will abide by that decision.

Justice White

Copies to the Conference

Sincerely,

~~

~~5~ J~~

}-() ~ \

~~~\ ~~~~~

CHAMI!IERS 01'"

JUSTICE w .. . J . BRENNAN, JR.

.iu.prtmt C!Jcttri of tfrt ,-mtta .Jta:tt• JfuJringtctt. ). QJ. 20~'l~

April 12, 1987

1 'l /

Re: No. 86-104 Board of Airport Commissioners v. Jews for Jesus

Dear Sandra,

Please join me.

With regard to Byron's comments and your response thereto, my recollection of the sense at conference was that First Amendment overbreadth doctrine, and not the public forum doctrine, was to be the basis of the court's decision. There was not a court, as I recall, to affirm on the public forum grounds. Since the judgment is to affirm, however, any discussion of the public forum question would be unnecessary to the judgment, and thus merely dictum. Accordingly, if you should decide to withdraw the current draft, my sense would be that the Court opinion should simply address the overbreadth issue, and leave the public forum question to another day.

Sin~

Justice O'Connor Copies to the Conference

..

-

CHAMeERS 01"

THE CHIEF JUSTICE

.jttpttmt <!fouri of tqt ~~ ,jta.ttg :JIJultittghtn. ~. <If. 2tl~'l~

Apr1l 13, 1987

' ij ''\

Re: No. 86-104 Board of Airport Commissioners v. Jews for Jesus

Dear Sandra,

I agree with much of what Byron said in his earlier letter to you in this case. The issue for which I thought we took the case, and which was fully briefed, was whether the Court of Appeals was correct in deciding as a matter of federal constitutional law that Los Angeles International Airport was a "public forum" for purposes of First Amendment doctrine. I had also thought that there were five votes at Conference to say the Court of Appeals was wrong in this part of its opinion.

I have some reservations about the approach which your present opinion takes to resolving this case, although it may be that after fuller consideration I would agree with you. I had not read John's opinion in City of Mesquite v. Aladdin's Castle, Inc. -- which I joined -- as broadly as you have. I thought in that case we had simply required the Court of Appeals for the Fifth Circuit to tell us whether it based its decision on state law or federal constitutional law. It also seems clear to me that if the respondent here were a state actor for Eleventh Amendment purposes, the Court of Appeals could not grant relief on a state law basis under Lewis' recent opinion in Pennhurst v. Halderman, 465 u.s. 89. I do not think either of these points is dispositive against the conclusion that you reach, but they make me reluctant to join your present draft without further consideration and perhaps additional briefing and argument.

Sincerely,

CHAMBERS Of

JUSTICE ANTONIN SCALIA

Jnprtm.t ~DUrt &tf lJtt ~iltb Jtatt.e

~ulfinghm. '· ~. 21T.?'!~

April 13, 1987

Re: No. 86-104 - Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

Dear Sandra:

We have never said that it is reversible error for a federal court to fail to resolve a state-law issue before reaching a federal constitutional claim, and I am not persuaded that it is. There are countervailing policies here: the policy of avoiding federal constitutional issues versus the policy of avoiding pronouncements on state-law quest1ons. I am not willing to say that giving preference to the latter is reversible error, unless the dispositive nature of the state law is entirely clear. Otherwise (since I know of no basis for imposing a "state-law­first" rule on state courts), we will have created the perverse situation in which one is significantly more likely to obtain a decision on a state question in federal court, and on a federal question in state court. I would not regard the dispositive nature of state law to be entirely clear if this Court feels it necessary to remand rather than decide the state-law issue on its merits. If an opinion can be written limiting the scope of the new principle to "clearly dispositive state grounds," and persuasively finding such grounds present in this case, I will join.

Otherwise, while I share Bill's aversion to dicta, it seems to me we should decide this case on the important point for which we took it: public forum doctrine as applied to airports. That can be done, without offending our new no-dicta rule, by following Byron's suggestion that we reverse on the public forum question and remand for the remainder, including both over­breadth and state law.

Sincerely,

Justice O'Connor

Copies to the Conference

~uvuUtt aro-mn Hrt ~b ~htttlf l; .. U'Jringhm. ~. ar. 2.(}~,.~ ! 'l

CHAMeERS OF"

JUSTICE JOHN PAUL STEVENS

April 13, 1987

Re: 86-104 - Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

Dear Sandra:

In my opinion it is perfectly clear that the Board's blanket prohibition against "First Amendment activities" is unconstitutional on its face regardless of whether or not LAX is a public forum. I could join a brief opinion affirming on that ground without volunteering any opinion on the public forum issue. As presently advised, however, I do not believe I could join an opinion that reaches out to engage in an unnecessary disquisition about either public forums or public fora.

If you are going to lecture the Ninth Circuit for bypassing the state law ground, I completely agree with you that we should practice what we preach--at least in the case in which we give the sermon. Thus, I will join your opinion if your proposed disposition receives the support of a majority (including my vote).

Respectfully,

Justice O'Connor

Copies to the Conference

-;lnvrtutt <!fond of tlrt ~b ~taue

'lhte4Utgton. ~.<!f. 21l,?~~

CHAM!IERS OF"

JUSTICE THURGOOD MARSHALL

April 14, 1987

Re: No. 86-104-Bd. of Airport Commissioners of the City of L.A. v. Jews for Jesus

Dear Sandra: Please join me.

Justice O'Connor

cc: The Conference

Sincerely,

~· • T.M.

April 14, 1987

86-104 Board of Airport Commissioners v. ,Jews for Jesus

Dear Sandra:

I would pref:er to decide the federal publi.c forum question, as this is the issue on which we granted. It is of interest 5n a number of states that have major airports.

I would not be inclined to dissent, however, if there is a Court for your suggested d i.sposit ion.

Justice O'Connor

lfp/ss

cc: The Conference

' (. .. ~ -'4· "' ·'~~·..t ,.

Sincerely,

. ..

,, To: Justice Brennan Justice White Justice Marshall Justice Blackmun Justice Powell Justice Stevens Justice O'Connor Justice Scalia

~ 9 ~ From: The Chief Justice

q -p.- ~ · ~ted:APR 2 9 1987

~ /-<) (._ ~ Recirculated: _______ _

~ ~~DR~Tl)'t_.. f;,J~~ SUPREME COURT OF THE UNITED STATES ~

No. 86-104 /.c, ~ BOARD OF AIRPORT COMMISSIONERS OF THE CITY

OF LOS ANGELES, ET AL., PETITIONERS v. JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER,

AKA A VI SNYDER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May -, 1987]

CHIEF JUSTICE REHNQUIST, dissenting. The Court chooses to decide this case on a ground that was

neither briefed nor argued by the parties. It concludes that a federal court exercising "federal question" jurisdiction and presented with a substantial claim under the United States Constitution must nonetheless decline to consider that claim because plaintiff's claim under the California state constitu­tion might prove dispositive. The Court thus extends sub­stantially the established principle that a federal court must resolve federal statutory claims before reaching federal con­stitutional claims.

The principles governing the jurisdiction and practice of federal courts are presently and unhappily very complex, and this decision bids fair to make them more so. Federal courts are told to abstain from decision of federal questions when difficult and unsettled questions of state law must be re­solved in order to reach a federal question. Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236 (1984); Railroad Comm'n v. Pullman, 312 U. S. 496 (1941). But this sort of abstention is invoked so that state courts may decide the diffi­cult and unsettled questions of state law. Federal courts are also admonished to abstain from deciding a federal question presented to them in an area heavily regulated by local au-

..

86-104-DISSENT

2 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

thorities, Burford v. Sun Oil Co., 319 U. S. 315 (1943), but this abstention, too, is in the interest of obtaining a decision from state authorities on questions of state law. See e. g., Colorado River Water Conservation District v. United States, 424 U. S. 800, 814 (1976). Finally, federal courts may not decide federal questions presented to them in a case where a pending state proceeding is already underway, and must actually dismiss the federal action. Ohio Civil Rights Comission v. Dayton Christian Schools, -- U. S. -­(1986); Younger v. Harris, 401 U. S. 37 (1971).

In another line of cases relating to pendent jurisdiction, which is what is involved here, we have said that "needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by pro­curing for them a surer-footed reading of applicable law." United Mine Workers v. Gibbs, 383 U. S. 715, 726 (1966). It seems to me that the result the Court reaches today is likely contrary to this part of Gibbs; federal courts are now told to proceed and decide state law questions over which they have only pendent jurisdiction before they may reach the federal constitutional claim upon which the jurisdiction of the federal court is based. Though the power of courts to proceed in this way may be clear, Siler v. Louisville & Nashville R. R., 213 U. S. 175, 193 (1909), a rule requiring this course of action is an extreme example of the "non-federal tail.. wag[ging] the federal dog." P. Bator, P. Mishkin, D. Shapiro, and H. Wechsler, Hart & Wechler's The Federal Courts and the Federal System 926 (2d ed. 1973).

The cases cited by the Court do not support the rule it an­nounces today. Our decision in City of Mesquite v. Alad­din's Castle, Inc., 455 U. S. 283 (1982), did not admonish the lower court for failing to decide state issues preliminary to consideration of federal issues. Instead, the Court found it­self unable to determine whether the decision under review had in fact been one of state or federal law. Because a deci­sion on the basis of state law would not have supported this

'•

86-104-DISSENT

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 3

Court's appellate jurisdiction under 28 U. S. C. § 1254(2), we remanded the case for clarification of the basis for the court's decision. We did not suggest that it had to decide the case on the basis of state law; instead we asked for a clear state­ment of whether its decision rested on state or federal law.

Nor is the Court's decision strengthened by its citation of cases involving the Pullman abstention doctrine. Ante, at 6, citing Askew v. Hargrave, 401 U. S. 476 (1971) (per curiam); Reetz v. Bozanich, 397 U. S. 82 (1970); City of Me­ridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959) (per curiam). The Court apparently views these cases as establishing a general principle of "state law first." What it ignores is the fact that this principle was applied so that un­settled questions of state law would be decided by the state courts. Avoidance of constitutional issues in those cases, therefore, was achieved without any interference of the fed­eral judiciary into questions of state law. Here, by contrast, the Court contemplates a resolution of state law by federal courts; surely, different considerations apply.

I think it is unwise for the Court to erect still another rule requiring federal courts to avoid the merits of federal con­stitutional claims without full briefing and argument by the parties on that subject. I think the Court ought to reach the merits of the federal constitutional issue decided by the Court of Appeals for the Ninth Circuit in this case, but since the Court chooses not to do so I refrain from expressing any view on that question.

2nd DRAFT

JustiCe w hlte Justice Marshall Justice Blackmun Justice Powell Justice Stevens Justice 1calia

From: Justice O'Connor

Circulated: _________ _

Recirculated: _ M_A_'rf_ i--=-:.19.::...:87 ___ _

SUPREME COURT OF THE UNITED STATES

No. 86-104

BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LOS ANGELES, ET AL., PETITIONERS v. JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER,

AKA A VI SNYDER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May -, 1987]

JUSTICE O'CONNOR delivered the opinion of the Court. The petitioner Board of Airport Commissioners seeks

review of the holding of the Court of Appeals for the Ninth Circuit that Los Angeles International Airport (LAX) is a "public forum" under the Federal Constitution. Because the Court of Appeals failed to address respondents' parallel and potentially dispositive claim under the California Constitu­tion, we vacate the judgment below and remand for consider­ation of the state law claim.

I On July 13, 1983, the Board of Airport Commissioners

(Board) adopted Resolution No. 13787, which provides in pertinent part:

"NOW, THEREFORE, BE IT RESOLVED by the Board of Airport Commissioners that the Central Termi­nal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity;

"BE IT FURTHER RESOLVED that after the effec­tive date of this Resolution, if any individual and/or entity seeks to engage in First Amendment activities

0'

86-104-0PINION

2 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

within the Central Terminal Area at Los Angeles Inter­national Airport, said individual and/or entity shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners in reference to the uses permitted within the Central Terminal Area at Los Angeles International Airport; and BE IT FURTHER RESOLVED that if any individual or entity engages in First Amendment activities within the Central Terminal Area at Los Angeles International Air­port, the City Attorney of the City of Los Angeles is di­rected to institute appropriate litigation against such individual and/or entity to ensure compliance with this Policy statement of the Board of Airport Commission­ers .... " App. 4a-5a.

Respondent Jews for Jesus, Inc. is a non-profit religious corporation. On July 6, 1984, Alan Howard Snyder, a minis­ter of the Gospel for Jews for Jesus, was stopped by a De­partment of Airports peace officer while distributing free religious literature on a pedestrian walkway in the Central Terminal Area at LAX. The officer showed Snyder a copy of the resolution, explained that Snyder's activities violated the resolution, and requested that Snyder leave LAX. The officer warned Snyder that the City would take legal action against him if he refused to leave as requested. App. 19a-20a. Snyder stopped distributing the leaflets and left the airport terminal. App. 20a.

Jews for Jesus and Snyder then filed this action in the Dis­trict Court for the Central District of California, challenging the constitutionality of the resolution under both the Califor­nia and Federal Constitutions. First, respondents con­tended that the resolution was facially unconstitutional under Art. I, § 2 of the California Constitution and the First Amendment to the United States Constitution because it bans all speech in a public forum. Second, they alleged that the resolution had been applied to Jews for Jesus in a dis-

' , .. , .!

il

86-104-0PINION ''j

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 3

criminatory manner. Finally, respondents urged that the resolution is unconstitutionally vague and overbroad.

When the case came before the District Court for trial, the parties orally stipulated to the facts, and the District Court treated the trial briefs as cross-motions for summary judg­ment. The District Court held that the Central Terminal Area was a traditional public forum under federal law, and held that the resolution was facially unconstitutional under the United States Constitution. The District Court declined to reach the other issues raised by Jews for Jesus, and did not address the constitutionality of the resolution under the California Constitution. The Court of Appeals for the Ninth Circuit affirmed. 785 F. 2d 791 (1986). Relying on Rosen v. Port of Portland, 641 F. 2d 1243 (CA9 1981), and Kuszynski v. City of Oakland, 479 F. 2d 1130 (CA9 1973), the Court of Appeals concluded that "an airport complex is a traditional public forum," 785 F. 2d, at 795, and held that the resolution was unconstitutional on its face under the Fed­eral Constitution. We granted certiorari, -- U. S. -­(1986), and now vacate and remand.

II

In their complaint, Jews for Jesus alleged a violation of the California Constitution as well as the Federal Constitution. The Liberty of Speech Clause of the California Constitution provides:

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Cal. Canst., Art. I, § 2(a).

In recent years, the California courts have interpreted the California Liberty of Speech Clause to provide greater pro­tection for expressive activity than that provided by the First Amendment to the United States Constitution. Wil­son v. Superior Court, 13 Cal. 3d 652, 658, 532 P. 2d 116, 120

86-104-0PINION

4 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

(1975) (The California Liberty of Speech Clause is "more de­finitive and inclusive than the First Amendment"). Most no­tably, the California courts have adopted a view of "public forum" under the Liberty of Speech Clause that is more ex­pansive than that expressed by this Court in cases arising under the First Amendment. Under the First Amendment, this Court has stated that a public forum must be either a "traditional" public forum such as a street or park that has by long tradition been devoted to assembly or speech, or a "des­ignated" public forum such as a municipal theater created by government designation as a place of communication. Cor­nelius v. NAACP Legal Defense & Educ. Fund,-- U.S. --, -- (1985); Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U. S. 37, 45-46 (1983). The California Courts have adopted a different approach. In In re Hoffman, 67 Cal. 2d 845, 434 P. 2d 353 (1967), the California Supreme Court held that a railway terminal was a public forum be­cause expressive activity was not inconsistent with the use of the terminal:

"The primary uses of municipal property can amply be protected by ordinances that prohibit activities that in­terfere with those uses. Similarly, the primary uses of railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohib­ited solely because the property involved is not main­tained primarily as a forum for such activities.

"[I]n the present case, the test is not whether petition­ers' use of the station was a railway use but whether it interfered with that use." 67 Cal. 2d, at 850-851, 434 P. 2d, at 356.

Although In re Hoffman itself did not clearly indicate that it rested on state law, the California courts have subse­quently cited it as an aid to interpretation of the California Constitution. Thus, in Robins v. PruneYard Shopping Cen-

86-104-0PINION

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 5

ter, 23 Cal. 3d 899, 592 P. 2d 341 (1979), aff'd, 447 U. S. 74 (1980), the California Supreme Court held that private shop­ping malls are public ·fora under the California Liberty of Speech Clause, relying in part on In re Hoffman, supra, de­spite the fact that this Court had already held in Tanner v. Lloyd Corp., Ltd., 407 U. S. 551 (1972), that the Federal Constitution offered no such protection for expressive activi­ties. See also Prisoners Union v. California Department of Corrections, 135 Cal. App. 3d 930, 185 Cal. Rptr. 634 (1982) (prison parking lot is public forum under California Constitu­tion); University of California Nuclear Weapons Labs Con­version Project v. Lawrence Livermore Laboratory, 154 Cal. App. 3d 1157, 201 Cal. Rptr. 837 (1984) (visitor center is a public forum under California Constitution).

Under the California Liberty of Speech Clause, therefore, the "public forum" doctrine "is not limited to traditional pub­lic forums such as streets, sidewalks, and parks or to sites dedicated to communicative activity such as municipal the­aters. Rather, the test under California law is whether the communicative activity 'is basically incompatible with the normal activity of a particular place at a particular time."' Carreras v. City of Anaheim, 768 F. 2d 1039, 1045 (CA9 1985), quoting Prisoners Union v. California Department of Corrections, supra, at 939, 185 Cal. Rptr., at 639.

Although the Court of Appeals for the Ninth Circuit has described California's Liberty of Speech Clause as providing "greater protection for expressive activity" than the First Amendment, Carreras v. City of Anaheim, supra, at 1044, n. 7, nevertheless both the District Court and the Court of Appeal failed to address respondents' claim that the resolu­tion was facially unconstitutional under the California Con­stitution. Yet, under this Court's precedents federal courts normally must address dispositive issues of state law before considering claims under the Federal Constitution. In City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283 (1982), this Court remanded to the Court of Appeals a constitutional

86-104-0PINION

6 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

challenge to a city ordinance governing coin-operated amuse­ment establishments because the ordinance might violate the Texas Constitution. We observed that "the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions," id., at 293, and noted that "there is no need for decision of the federal issue" if the state constitution provided "independent support" for the plaintiff's requested relief. I d., at 294-295. We concluded, consistent with this Court's "policy of avoiding the unnecessary adjudication of federal constitutional issues," ibid., that under these circum­stances the case must be remanded to determine whether the case could be resolved under the Texas Constitution. Simi­larly, this Court has on several occasions remanded a case on Pullman abstention grounds when the application of a state constitutional provision might prevent the need to reach a Federal Constitutional issue. See Askew v. Hargrave, 401 U. S. 476 (1971); Reetz v. Bozanich, 397 U. S. 82 (1970); City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959). Thus, as a result of these precedents, "[t]here exists a growing recognition among Federal Courts of Appeals that it is incumbent upon them to resolve issues of state con­stitutional law before reaching issues arising under the Fed­eral Constitution." Delaware v. Van Arsdall, -- U. S. --, --, Fl. 15 (STEVENS, J., dissenting). Indeed, the Court of Appeals for the Ninth Circuit itself has done pre­cisely that in applying the "public forum" principles of Cali­fornia constitutional law rather than the First Amendment to invalidate a city ordinance banning solicitation at the Ana­heim Stadium and Anaheim Convention Center. Carreras v. City of Anaheim, supra, at 1042-1043.

The principle that federal courts should avoid resting a de­cision on Federal Constitutional grounds if a case can be de­cided on the basis of state law follows from the more general and longstanding principle that federal courts should avoid unnecessary adjudication of federal constitutional issues.

>I.

il 86-104-0PINION ''l

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 7

See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345-348 (1936) (Brandeis, J., concurring). As early as 1909, this Court recognized that federal courts should avoid federal constitutional issues if a case can be decided on pend­ent state law grounds. Siler v. Louisville & Nashville R. R., 213 U. S. 175, 193 (1909); see also Hagans v. Lavine, 415 U. S. 528, 547 (1974) ("Numerous decisions of this Court have stated the general proposition endorsed in Siler .... These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case"). "[l]f a con­troverted question of state law underlay the question of fed­eral law, it [is] the district court's duty to decide the state question first . . . in order to avoid if possible a federal constitutional question." P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 989 (2d ed. 1973). State constitutional provisions that do more than merely mirror Federal Con­stitutional guarantees offer no less compelling a ground for decision than state statutes and case law. Cf. Delaware v. Prouse, 440 U. S. 648, 652-653 (1979) (observing that some state constitutional provisions will be interpreted by state courts to mirror Federal constitutional law). Particularly when, as is the case here, the state constitution may provide greater protection for individual rights than the United States Constitution, the resolution of the federal claim may be unnecessary to support the plaintiff's claim for relief. See Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1099-1100 (1974) ("When state law is truly clear and when ruling on it would dispose of the case, it would seem appro­priate for the federal court to rule on the state issue even if the federal constitutional question is also clear and nonsensitive").

In addition, principles of federalism compel the conclusion that federal courts should first examine legitimate state con-

86-104-0PINION

8 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

stitutional claims, if their resolution is clear as a matter of state law, before reaching any Federal Constitutional issues. State constitutional law, no less than Federal Constitutional law, has an important role to play in the protection of individ­ual rights. See Linde, First Things First: Rediscovering the States' bills of Rights, 9 U. Balt. L. Rev. 379 (1980); Bren­nan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). But if state constitu­tional law is to play this role, the federal courts, no less than the state courts, may be called upon to recognize and apply settled state constitutional norms. In circumstances in which the state law is neither clear nor dispositive, of course, countervailing policies of federalism suggest that the federal court should avoid "needless decisions of state law." United Mine Workers v. Gibbs, 383 U. S. 715, 726 (1966). But where the applicable principle of state law is properly raised as a pendent state claim, and the state law on the issue is both entirely clear and completely dispositive of the case, there is no cause for concern about federal "interference . . . into questions of state law," post, at--, that would justify departure from the "fundamental rule of judicial restraint" that federal courts should avoid unnecessary adjudication of federal constitutional issues. Three Affiliated Tribes of Berthold Reservation v. Wold Engineering, 467 U. S. 138, 157 (1984).

In this case several factors strongly counsel in favor of first addressing the respondents' pendent state claim before reaching the Federal Constitutional issues. Respondents raised the state law issue in the courts below, and in this Court they discussed the applicability of the California Con­stitution to this case, noted that the state constitutional issue had been extensively briefed and argued below, and observed that "[t]he corollary to the general principle that decision of federal constitutional questions should be avoided when pos­sible . . . applies equally when the pendent state ground is the state constitution rather than a statute." Brief for Re-

86-104-0PINION

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 9

spondents 21, n. 32. Moreover, when a rule of judicial re­straint and prudence is at issue, this Court is not necessarily limited by the issues raised by the parties in this Court. In­deed, in Railroad Comm'n v. Pullman, 312 U. S. 496 (1941), prudential considerations led this Court to apply an absten­tion doctrine that was neither briefed nor argued by the par­ties. Respondents' claim under the California Constitution is potentially dispositive, and is based on a state constitu­tional provision that does not merely mirror the Federal Con­stitution. The California Courts have given the concept of "public forum" a settled meaning under the California Con­stitution that offers broader protection to expressive activity in public facilities than that under the First Amendment. There exists "[n]o reason for hasty decision of the [federal] constitutional question presented by this case." City of Mes­quite v. Aladdin's Castle, Inc., supra, at 294. Because the District Court and the Court of Appeals simply ignored re­spondents' claim under the California Liberty of Speech Clause, we vacate the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan Justice Marshall Justice Blackmun Justice 'Powell Justice ~tevens Justice '<?'Connor Justice Scalia

v From: Justice White

Circulated: MAY 1 1987

Recirculated: ________ _

1st DRAFT

SUPREME COURT OF THE UNITED STATES

No. 86-104

BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LOS ANGELES, ET AL., PETITIONERS v. JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER, AKA

AVISNYDER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May -, 1987]

JUSTICE WHITE, dissenting.

Even if the Court of Appeals, as a prudential matter, should have decided the case on State-law grounds, it did not, and the Federal issue has been briefed and argued here in this Court. In these circumstances, we should not waste the effort we have expended on this case. The Federal issue should be addressed, as THE CHIEF JuSTICE suggests.

/

CHAMBERS OF

~--~ ..hprmtt <!fourl 4tf tq~ ~~ .Blatt•

.u!tiqt~ !J. Of. 20~Jl.~

..JUSTICE HARRY A . BLACKMUN May 8, 1987

..

Re: No. 86-104, Board of Airport Commissioners v. Jews for Jesus

Dear Sandra:

This case, as for most of the rest of us, has given me difficul­ty. After reading the proposed opinions and the correspondence~ my preference now is to dec' the case on overbreadth. This means that I do not join your op1nion as prese r1 I would hope that the case could be decided on overbreadth without getting into the entanglements of the public forum issue. I am not sure, from the correspondence, that there is a Court for the public forum issue anyway.

Sincerely,

Justice O'Connor

cc: The Conference

CHAMBER S Of'

.JUSTICE SANDRA DAY O'CONNOR

.ju.prtmt <qourt O'f tqt ~ittb .jtatt.l' 'Jfa,gfrhtgt.on.1J. <q. 2ll?,.~

May 11, 1987

Re: 86-104 Board of Airport Commissioners v. Jews for Jesus

MEMORANDUM TO THE CONFERENCE:

Now that Harry has indicated he will not be joining my circulating opinion in this case I will go back to the drawing board and address the public forum and overbreadth issues. It may take a couple of weeks.

Sincerely,

CHAMBER'S 0 F"

JUSTICE JOHN PAUL STEVENS

~u:prttttt QJ:mu-t d tlrt ~nitt~ ~hdtlT ~rur4Urghrn. ~. QJ. 2.0,?~~

May 14, 1987

Re: 86-104 - Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

Dear Sandra:

Since the overbreadth issue is clearly dispositive in this case, I see no need to address the public forum question.

Respectfully,

/v,L Justice O'Connor

Copies to the Conference

t '<

., ...

--~ ~:~~~: ~~~~~~~n -{_ .J- , (}! ~~: :5 o )c ~~

Justice Powell Justic'e Stevens Jus tic~ Scalia ..---- - --

/~v )~ ~-l'f!fL-;1 -- - ·--

,., From: ·Justice O'Connor

.~AY ~ '11. Circulated: ________ _

~ ~f~ ·L.&_~ ~ )?Rec? lated: r

1st DRAFT

SUPREME COURT OF THE UNITED STATES

~~-r 5 --- No. 86-104

BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LOS ANGELES, ET AL., PETITIONERS v. JEWS FOR JESUS, INC. AND ALAN HOWARD SNYDER,

AKA A VI SNYDER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May -, 1987]

JusTICE O'CONNOR delivered the opinion of the Court.

The issue presented in this case is whether a resolution banning_@ "First Amendment activities" at Los Angeles In­ternational Airport (LAX) violates the First Amendment.

I

On July 13, 1983, the Board of Airport Commissioners (Board) adopted Resolution No. 13787, which provides in pertinent part:

"NOW, THEREFORE, BE IT RESOLVED by the Board of Airport Commissioners that the Central Termi­nal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity;

"BE IT FURTHER RESOLVED that after the effec­tive date of this Resolution, if any individual and/or entity seeks to engage in First Amendment activities within the Central Terminal Area at Los Angeles Inter­national Airport, said individual and/or entity shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners in reference to

86-104-0PINION

2 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

the uses permitted within the Central Terminal Area at Los Angeles International Airport; and "BE IT FURTHER RESOLVED that if any individual or entity engages in First Amendment activities within the Central Terminal Area at Los Angeles International Airport, the City Attorney of the City of Los Angeles is directed to institute appropriate litigation against such individual and/or entity to ensure compliance with this Policy statement of the Board of Airport Commissioners . . . . " App. 4a-5a.

Respondent Jews for Jesus, Inc. is a nonprofit religious corporation. On July 6, 1984, Alan Howard Snyder, a minis­ter of the Gospel for Jews for Jesus, was stopped by a De­partment of Airports peace officer while distributing free religious literature on a pedestrian walkway in the Central Term1na1 A.~"'eofficer showed Snyder a copy of the resolution, explained that Snyder's activities violated the resolution, and requested that Snyder leave LAX. The officer warned Snyder that J.he Cit~ would take legal action agamst1iliiilr he refused to leave as requested. 1 d., at 19a-20a. Snyder stopped distributing the leaflets and left the airport terminal. I d., at 20a.

Jews for Jesus and Snyder then filed this action in the Dis­trict Court for the Central District of California, challenging the constitutionality of the resolution under both the Califor­nia and Federal Constitutions. ~' respondents con­tended that the resolution was facially unconstitutional under Art. I, § 2 of the California Constitution and the First Amendment to the United States ~itution because it bans all ..speech in a Jl.Ublic forum. Seeemf. they alleged that th~esolution had bee~d to Jews for Jesus in a dis­criminatory manner. ~ re_§Qondents urged that the resolution was unconstitutiOnally vague and overbroad.

When the case came before the District C"ourtror trial, the parties orally stipulated to the facts, and the District Court treated the trial briefs as cross-motions for summary judg-

86-104-0PINION

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 3

ment. The District Court held that the Central Terminal Area was a traditional public forum under federal law, and held that the resolution was facially unconstitutional under the United States Constitution. The District Court declined to reach the other issues raised by Jews for Jesus, and did not address the constitutionality of the resolution under the California Constitution. The Court of Appeals for the Ninth Circuit affirmed. 785 F. 2d 791 (1986). Relying on Rosen v. Port of Portland, 641 F. 2d 1243 (CA9 1981), and Kuszynski v. City of Oakland, 479 F. 2d 1130 (CA9 1973), the Court of Appeals concluded that "an airport complex is a traditional public forum," 785 F. 2d, at 795, and held that the resolution was unconstitutional on its face under the Federal Constitution. We granted certiorari,-- U. S. -- (1986), and now affirm, but on different grounds.

------, II

In balancing the government's interest in limiting the use of its property against the interests of those who wish to use the property for expressive activity, the Cou~'!!'tified three types of for~onal public fo e public forum create"d by government designation, and onpublic forum. Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45-46 (1983). The proper First Amendment analysis differs depending on whether the area in question falls in one category rather than another. In a traditional public forum or a public forum by government designation, we have held that First Amendment protections are subject to Qeightened . ..8.G!_utiny:

"In these quintessential public f6rums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are con-

..

86-104-0PINION

4 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

tent-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." I d., at 45.

We have further held, however, that access to a nonpublic forum may be restricted by government regulation as long as the regulation "is reasonable and not an effort to suppress ex­pression merely because officials oppose the speaker's view." Id., at 46.

The petitioners contend that LAX is neither a traditional public forum nor a public forum by government desi~ation, and accordingly argue that the latter standard governing ac­cess to a nonpublic forum is appropriate. The respondents, in turn, argue that LAX is a public forum subject only to rea­sonable time, place or manner restrictions. Moreover, at least one commentator contends that Perry does not control a case such as this in which the respondents already have ac­cess to the .airport, and therefore concludes that this case is analogous to Tinker v. Des Moines School Dist., 393 U. S. 503 (1969). See Laycock, Equal Access and Moments of Si­lence: The Equal Status of Religious Speech by Private Speakers, 81 Nw. U.L. Rev. 1, 48 (1986). Because we con­clude that the resolution is facially unconstitutional under the the First Amendment overbreadth doctrine regardless of the proper standard, we need not decide whether LAX is indeed a public forum, or whether the Perry standard is applicable when access to a nonpublic forum is not restricted.

Under the First Amendment o~d.Q§rine, an in­dividual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face "because it also threatens others~those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spo­kane Arcades, Inc., 472 U. S. 491, 503 (1985). A statute may be invalidated on its e~ly if the over­breadth is "substantial." Houston v. Hill,-- U. S. --,

il 86-104-0PINION ' l

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 5

- (1987); New York v. Ferber, 458 U. S. 747, 769 (1982); Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). There­quirement that the overbreadth be substantial arose from our recognition that application of the overbreadth doctrine is, "manifestly, strong medicine," Broadrick v. Oklahoma, supra, at 613, and that "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." City Council v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984).

On its face, the resolution at issue in this case reaches the "

1universe of expressive activity, and, y pro ~all pro­tecte-o create a virtual "First Amend­ment Free Zone" at LAX. The resolution does not merely regulate expressive activity in the Central Terminal Area that might create problems such as congestion or the disrup­tion of the activities of those who use LAX. Instead, the resolution expansively states that LAX "is not open for First Amen men ac iv1 ies by any inaividual anaTor entity," and that ny 1 1vi al an or entity [w o] see s o engage in First Amendment activities within the Central Terminal Area ... shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners." App. 4a-5a. The resolution therefore does not merely J:.Qaek mass ~iGHs and--leaflQtting at LAX; it prohibits even talk­

-o ing and reading, or the wearing of campaign buttons or sym­bolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the reso­lution by engaging in some "First Amendment activit[y]." We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable govern-

, •. ~, /.J... me~stify such an absolute prohibition of . .J , y ~ · speech. ~ , Additionally, we find no a rent s ing construction of ~f ~J,t<--- the resolution. The resolution expressly applies to all irst

;;::: ~~ ~tp-f<tJV- ~ .J#,I ~ ~'r.~ ~

~. ~ ,.

86-104-0PINION

6 AIRPORT COMM'RS v. JEWS FOR JESUS, INC.

Amendment activities," and the words of the resolution sim­ply leave no room for a narrowing construction. In the past the Court sometimes has used either abstention or certifica­tion when, as here, the state courts have not had the opportu­nity to give the statute under challenge a definite construc­tion. See, e. g., Babbitt v. United Farm Workers National Union, 442 U. S. 289 (1979). Neither option, however, is appropriate in this case because California has no certifica­tiotL,proc~dure, and the resolution is~ tO an interpretation which Woilla rendef"'unnecessaryorsubstan­tiall modify t e e era constitutional question." Harmon v. Fors~8, 535 1965). The difficulties in adopting a limiting construction of the resolution are not un­like those found in Baggett v. Bullitt, 377 U. S. 360 (1964). At issue in Baggett was the constitutionality of several stat­utes requiring loyalty oaths. The Baggett Court concluded that abstention would serve no purpose given the lack of any limiting construction, and held the statutes unconstitutional on their face under the First Amendment overbreadth doc­trine. We observed that the challenged loyalty oath was not "open to one or a few interpretations, but to an indefinite number," and concluded that "[i]t is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty." I d., at 378. Here too, it is difficult to imagine that the resolution could be limited by anything less than a series of adjudica­tions, and the chilling effect of the resolution on protected speech in the meantime would make such a case-by-case ad­judication intolerable.

The petitioners suggest that the resolution is not substan­tially overbroad because it is intended to reach only expres­sive activity unrelated to airport-related purposes. Such a limiting construction, however, is of little assistance in sub­stantially reducing the overbreadth of the resolution. Much nondisruptive speech-such as the wearing of a T -Shirt or

86-104-0PINION

AIRPORT COMM'RS v. JEWS FOR JESUS, INC. 7

button that contains a political message-may not be "airport related," but is still protected speech even in a nonpublic forum. See Cohen v. California, 403 U. S. 15 (1971). Moreover, the vagueness of this suggested construction itself presents serious constitutional difficulty. The line between airport-related speech and nonairport-related speech is , at best, murky. The petitioners, for example, suggest that an individual who reads a newspaper or converses with a neigh­bor at LAX is engaged in permitted "airport-related" activity because reading or conversing permits the traveling public to "pass the time." Reply Brief for Petitioners 12. We pre­sume, however, that petitioners would not so categorize the activities of a member of a religious or political organization who decides to "pass the time" by distributing leaflets to fel­low travelers. In essence, the result of this vague limiting construction would be to give LAX officials alone the power to decide in the first instance whether a given activity is air­port related. Such a law that "confers on police a virtually unrestrained power to arrest and charge persons with a vi­olation" of the resolution is unconstitutional because "[t]he opportunity for abuse, especially where a statute has re­ceived a virtually o en-ended interpretation, is self-evident." Lewis v. C · o ew Or s, 415 U. S. 130, 135-136 (1974); see a ouston v. Hill, U. S., at--; Kolender v. Laws , 461 U. S. 352, 3 (1983).

We cone resolution is substantially overbroad, and is not fairly subject to a limiting construction. Accord­ingly, we hold that the resolution violates the First Amend­ment. The judgment of the Court of Appeals is

Affirmed.

MEMORANDUM

To: Justice Powell May 27, 1987

From: Leslie

(/

. ''I ,.,

No. 86-104, Board of Airport Comm'rs v. Jews for Jesus

Justice O'Connor's draft opinion for the Court is now l(

circulating in this case. She has resolved the case on over-

\~ l breadth, rather than reaching the public forum issue. This reso-___...., lution appears fine to me, but then resolution on the state law

ground appeared fine to me as well. The overbreadth issue is an ,( ' "

alternate ground for ~ng th~ jud~ent b~low, whereas if the r .

Court reached the public forum issue, it would reverse the judg-

ment. You indicated in your memo to Justice O'Connor that you J ~ thought the public forum issue should be addressed. You could

request that Justice O'Connor first could address the public

forum issue and then affirm the lower court judgment based on

overbreadth. This, however, would seem at odds with the Court's '

policy of not reaching unnecessary constit~tional is$ues. Aneth-

er consideration is that the Court is split on whether the public

forum issue need be addressed. It may be better for the Court to

wait to address the public forum issue until all the Justices

believe that the issue is prope~ly In sum, I believe

that onnor's resolution is If you think

that the need to address the public forum issue is of overriding

importance, however, you may want to defer joining the opinion

until it is evident how many other Justices share your view.

j;lt.Jlrttttt <qcurt ttf tqt ~ittb ,jtatt~ Jht,glfingtttn, ~. <q. 2ll&t'!~

CHAMBE:RS OF

JUSTICE SANDRA DAY O'CONNOR

,, '. ):,r; .. ~·-.i', .·.

( .

May 27, 1987

Re: 86-104 Board of Airport Commissioners v. Jews for Jesus, Inc.

MEMORANDUM TO THE CONFERENCE:

I am circulating herewith a revised approach in this case. The Court is divided on the desirability of resolving the public forum issue. Having "tinkered" with several versions, I have decided there is no nee esolve e bli orum question in light the ove~rlth b~lding. Accordingly, the~w draft proposes affirming on overbreadth.

Sincerely,

. '

,•,

CHAMBERS OF"

~upumt Qf4tltrl .o:f tlrt ~nitn ~hrlt.­

J[rurJringt.o:n. ~. elf. 21lp'!~

JUSTICE JOHN PAUL STEVENS

May 27, 1987

Re: 86-104 - Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

Dear Sandra:

Please join me.

Respectfully,

Justice O'Connor

Copies to the Conference

' .

/

I I

CHAMI!IERS 01'"

JUSTICE w .. . J . BRENNAN, JR.

j}uprmtt Qfttlttt of tfrt ~b jlhttt• ~ulfiughtn. ~. <lf. 2Ll~'l-~

May 28, 1987

Re: No. 86-104 Bd. of Airport Comm'rs v. Jews for Jesus

Dear Sandra

Please join me.

Sincerely, I

Justice O'Connor Copies to the Conference

CHAMBE:RS OF"

JUSTICE THURGOOD MARSHALL

~u:.prtm.t Qicu.rt of t4t ~b ~tatte 11taefringtcn. ~. Qt. 2ll&f~;t

/ May 29, 1987

Re: No. 86-104-Bd. of Airport Commissioners of the City of LA v. Jews For Jesus

Dear Sandra: Please join me in your latest draft (5/27/87).

Justice O'Connor cc: The Conference

Sincerely,

~· T.M.

May 29, 1987

86-104 Board of Airport Commissioners v. Jews for Jesus

Dear Sandra:

Please join me.

Sincerely,

Justice O'Connor

lfp/ss

cc: The Conference

, . .. ,

May 29, 1987

86-104 Board of Airport C'..ommiss toners Jews for Jesus

near Sandra:

Although I have ioined your Court opinion in this case, I would appreciate your taking a look at the sentence in the first full paragraph of paqe 5 that begins: "The resolution therefore does not merely reach mass demonstrations and leafletting at LAX 1 ••• "

I would prefer saying that the resolutj.on "0oes not reach merely the activity of respondents at LAY.; ••• " ~he sentence as it now reads mav suggest an unduly narrow scone of permiss i ble regulation in a nonpublic forum.

Sincerely,

Justice O'Connor

lfp/ss

CH AMBERS OF

~u;trtmt <!ltt1trl oJ tlrt ~tb ~taft.&'

Jlagftinghtn. ~. <!l· 2lJp~~

.JUSTICE BYRON R . WHITE June 1,

86-104 - Board of Airport Commissioners of

the City of Los Angeles v. Jews

for Jesus, Inc.

Dear Sandra,

I join your opinion but will write a

word or two on the side.

Sincerely yours,

Justice O'Connor

Copies to the Conference

CHAMBERS OF

JUSTICE SANDRA DAY O'CONNOR

~n.vrttttt Cltlmrt o-f tqt 'Jnitta ~tatt.s' ~a$ftington, ~. ar. 2.0.;i~~ '

June 1, 1987

No. 86-104 Bd. of Airport Commrs. v. Jews for Jesus

Dear Lewis,

I have incorporated your suggested change in a new draft which will circulate today.

Sincerely,

Justice Powell

CHAMI!IERS OF"

THE CHIEF .JUSTICE

..iu.prtntt Clfltltri gf t!rt ~b ..itatt.e ~a.e!fittghtn. ~. <fl. 20~~~

June 2, 1987

Re: 86-104 - Board of Airport Commissioners v. Jews for Jesus

Dear Byron:

Please join me in your concurring opinion.

Sincerely,

Justice White

cc: The Conference

CHAMI!IERS OF

THE CHIEF JUSTICE

;iupttutt arourl of tqt ~b .jtzdts Jfaslfinghtn. ~. <!f. 2ll~~~

June 2, 1987

Re: 86....:104 - Board of Airport Commissioners v. Jews for Jesus

Dear Sandra:

Please join me.

Sincerely,

. v~

Justice O'Connor

cc: The Conference

CHAMBERS 0~

JUSTICE ANTONIN SCALIA

.tupr.tm~ QI&mrt Df tJrt ~ittb .ttatt• )lulfbtgton. J. QI. 2D?~'

June 3, 1987

Re: No.86-104 - Bd. of Airport Comm'rs v. Jews for Jesus

Dear Sandra:

I would be pleased to join your opinion.

Sincerely,

Justice O'Connor

Copies to the Conference

CHAMBE:RS OF"

JUSTICE SANDRA DAY O'CONNOR

ju.prtm.e atourt of t~t ~iitb ..it'ltt.s Jla.tYftiugton. ~. Of. 21lbi~~ ·

June 4, 1987

No. 86-104 Bd. of Airport Commissioners v. Jews for Jesus

Dear Chief,

This case was scheduled to come down next week, but it contains references to Houston v. Hill, No. 86-243. I would prefer to leave the citations and postpone announcing this case until Houston v. Hill is ready for announcement.

Sincerely,

The Chief Justice

Copies to the Conference

86-104 Board of Airport Commissioners v. Jews for Jesus (Leslie)

SOC for the Court 3/9/87 1st draft 4/9/87 2nd draft 5/1/87

Joined by BRW 4/12/87 TM 4/14/87

CJ dissenting 1st draft 4/29/87

Joined by AS 5/6/87 BRW dissenting

1st draft 5/1/87

SOC withdrew opinion

soc for the Court 1st draft 5/27/87 2nd draft 6/1/87

Joined by JPS 5/27/87 WJB 5/28/87 HAB 5/29/87 LFP 5/29/87 BRW 6/1/87 CJ 6/2/87 AS 6/3/87

BRW concurring 1st draft 6/2/87 2nd draft 6/3/87

Joined by CJ 6/2/87 BRW will write a word or two 6/1/87